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1.1 These General Terms and Conditions of Sale (“Terms”) shall be the only terms applicable to any agreement concerning the purchase and sale of products (“Products”) between Customer and Immudex including, without limitation, any prior quotation, purchase order and order confirmation exchanged between the parties hereto. For purposes of these Terms, “Immudex” shall mean Immudex ApS and its divisions, subsidiaries and affiliates and “Customer” shall mean any person or organization purchasing Products from Immudex.
1.2 These Terms shall apply to the exclusion of any other terms and conditions that Customer seeks to impose or incorporate, or which would otherwise be implied by trade, custom, practice and/or course of dealing. Any deviations from these Terms shall only prevail to the extent they have been accepted by Immudex in writing and are inconsistent with these Terms.
1.3 Immudex’ fulfilment of Customer’s purchase order does not constitute acceptance of any of Customer’s terms and conditions of purchase and does not serve to modify or amend these Terms. Customer’s acceptance of delivery of any Product shall be deemed conclusive of Customer’s acceptance of being bound by these Terms to the exclusion of any other terms and conditions of purchase that are not accepted by Immudex in writing prior to delivery.
1.4 Immudex reserves the right to unilaterally amend these Terms at any time without advance notice in which event the amended Terms effective as of the date of their posting on Immudex’ website (https://www.immudex.com/about-us/terms-and-conditions/) (or such other date stated therein, whichever is the latest) shall apply to any agreement between the parties, including, without limitation, any prior quotation, purchase order and order confirmation exchanged between them concerning the purchase and sale of Products between Customer and Immudex.
2.1 These Terms shall apply to any quotation made by Immudex concerning the sale of Products, which shall be valid for ninety (90) days unless another period is stated therein, or the quotation is withdrawn beforehand. The quotation shall not be construed or operate as an offer or obligation to sell or supply any Product but merely as an invitation to treat (only) with no transaction or contractual relationship arising therefrom until Customer’s purchase order for Products is accepted by Immudex’ order confirmation.
2.2 Purchases and sales of Products between Customer and Immudex shall be made by means of purchase orders submitted by Customer to Immudex, specifying, among other things, the number of units of each Product ordered, the desired date and place of delivery and such additional information required by Immudex to process the purchase order as set out in Immudex’ relevant quotation or order form. Each purchase order shall be deemed to be an offer by the Customer to purchase Products in accordance with these Terms, and any additional or different terms or provisions contained in any such purchase order or proposal of Customer are hereby rejected and shall not constitute a part of any contract resulting from Immudex’ acceptance of Customer’s purchase order.
2.3 No purchase order shall be deemed accepted unless confirmed in writing by Immudex’ order confirmation and expressly subject and limited to these Terms. Immudex may choose not to accept any particular purchase order for any reason, or no reason, without liability. Immudex shall be entitled to accept Customer’s purchase order partially by modifying the requested quantities of Products, delivery dates and other specifications as set out in Immudex’ order confirmation. Any such modification shall be deemed to be accepted by Customer unless Customer within seven (7) days of the order confirmation explicitly informs Immudex otherwise in writing.
3.1 All purchase orders accepted by Immudex shall not thereafter be cancellable by Customer unless prior written consent is obtained, which Immudex may withhold in its sole discretion or make conditional upon Customer’s payment of reasonable cancellation charges. No cancellation of special, custom, or made-to-order Products will be permitted. If Customer fails to make purchases provided for in any accepted purchase order, then Customer shall be responsible for all damages resulting therefrom incurred by Immudex (including, without limitation, lost profits).
4.1 Customer will be invoiced at the Product prices quoted in the order confirmation or, if not included in the order confirmation, as included in the price list provided by Immudex. Unless otherwise explicitly stated, all Product prices quoted by Immudex are subject to change without notice, and prices may be changed up to the time of dispatch of Products. If prices change between Customer’s receipt of an order confirmation and Immudex’ dispatch of Products, Immudex will notify the Customer in advance.
4.2 All Product prices are “ex works” (EXW Incoterms 2020), i.e. exclusive of shipping and insurance charges and of all taxes, duties or levies, however designated or computed, including, but not limited to, sales, use, or value-added taxes and duties. Customer shall be responsible for all such charges, taxes, duties and levies, and if explicitly included in the Product price or otherwise specified, any increase thereof.
5.1 Unless otherwise stated in Immudex’ order confirmation or invoice, terms of payment are:
net cash thirty (30) days following the date of invoice, and
net cash fourteen (14) days following the date of invoice,
all payable in the currency specified in the invoice. Time of payment shall be of the essence. Customer shall not be entitled to withhold payment of any amounts due and payable by reason of any setoffs of any claim or dispute with Immudex, whether relating to breach or otherwise.
5.2 Customer shall pay interest on all late payments at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Immudex for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available under these Terms or at law, Immudex shall be entitled to suspend the delivery of any Products, if Customer fails to pay any amounts when due.
5.3 If Customer disputes any invoice or portion thereof, it shall notify Immudex in writing within seven (7) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
6.1 All delivery dates provided by Immudex are good faith estimates only and not firm commitments but Immudex will use commercially reasonable efforts to secure timely delivery. Immudex shall in no event have any liability whatsoever for any late delivery, performance or completion and no delay shall entitle Customer to reject delivery, return Products or claim damages. If delivery has not yet occurred and is delayed thirty (30) days or longer for reasons other than Force Majeure (as hereinafter defined) or acts or omissions for which Customer is responsible, the sole and exclusive remedy of Customer shall be to cancel the confirmed purchase order against refund of any purchase price already paid.
6.2 Unless otherwise agreed, delivery of Products shall be made “ex works” (EXW Incoterms 2020) at Immudex’ shipping point in either Copenhagen, Denmark or Fairfax, Virginia, USA or such other place of shipping as determined by Immudex in its sole discretion. Customer is obliged to take delivery on the date and place of delivery communicated to Customer and is responsible for any necessary import or export or other license being obtained.
6.3 All risk of loss and damage shall pass from Immudex to Customer upon collection of Products by the first carrier at Immudex’ shipping point. Absent any agreement or specific instructions to the contrary, Immudex is authorised to organise shipping on Customer’s behalf but shall bear no responsibility thereof. Shipping organised by Immudex will be made in accordance with Immudex’ standard commercial practices via a carrier selected by Immudex in its sole discretion. Shipping charges and any insurance charges are prepaid and invoiced to Customer.
6.4 Immudex may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Each shipment will constitute a separate sale, and Customer shall pay for units of Products shipped whether such shipment is in whole or partial fulfilment of Customer’s purchase order.
6.5 Title to Products shall not pass to Customer until Immudex has received payment in full for Products delivered and all other sums due and Immudex retains all rights of possession or repossession of Products, wherever located, to ensure collection of the purchase price thereof and all other sums due.
6.6 Immudex packaging is designed to keep our reagent products at refrigerated temperatures for approximately five (5) days. The timing of the shipments is therefore critical if not stored in refrigerated temperatures during shipment.
7.1 Customer is obliged to thoroughly inspect Products immediately after delivery to ensure their compliance with specifications and to notify Immudex in writing of any damage, error, shortages or defects. In the absence of such written notification within ten (10) days of delivery, Customer shall be deemed to have accepted the delivered Products as complete, undamaged and without defects and conforming with specifications.
7.2 Subject to Customer’s timely notice, Immudex undertakes to remedy any acknowledged defect of Products delivered by supplying a replacement thereof or, in Immudex’ sole discretion, by crediting Customer for such defective Product. Immudex shall in no event be liable for any of Customers’ losses attributable to any defective Product, whether direct or indirect losses.
8.1 All Products supplied hereunder are made-to-order and may incorporate special or custom features specified by Customer or otherwise be experimental. Customer acknowledges that Products do not have a recognized clinical utility and are intended to be used solely by Customer for its basic research only and not for any other purpose. Customer agrees that Products will be used solely for its own research or investigational purposes (ROI) in accordance with the claims and intended uses stated in the relevant (then current) Product literature released by Immudex and never for any clinical diagnosis, prognosis or therapeutic determinations.
8.2 Customer’s resale of Products to any third party is strictly prohibited absent the express written permission of Immudex. Customer shall not reverse engineer or analyse Products or any components thereof in order to determine their material composition. Customer may not modify Products without the express written permission of Immudex. Any such act not authorised by Immudex in writing shall be deemed a material breach, and in addition to any remedies at law, immediately release Immudex from any warranty and liability.
9.1 Except as otherwise set forth by an applicable (non-optional) mandatory statutory regulatory provision, the sole warranty given by Immudex regarding any Product shall be that written limited warranty, if any, which shall accompany such Product or which shall otherwise be designated in writing by Immudex as applicable to such Product, as the same may be revised by Immudex from time to time. In the event of a breach of the foregoing warranty, Immudex’ liability and Customer’s remedy is limited exclusively to, in Immudex’ sole discretion, the replacement of Products that complies with the foregoing warranty or a refund up to the amount of the purchase price for the applicable Product(s).
9.2 EXCEPT AS EXPRESSLY SO WARRANTED, IMMUDEX HEREBY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, APPLICABLE TO PRODUCTS INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, DESIGN, AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE WRITTEN LIMITED WARRANTY, IF ANY, APPLICABLE TO ANY PARTICULAR PRODUCT SHALL STATE THE FULL EXTENT OF IMMUDEX'S LIABILITY, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, RESULTING FROM ANY BREACH OF SUCH WARRANTY.
10.1 IN NO EVENT SHALL IMMUDEX BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, OR ANY LIABILITY OF CUSTOMER TO A THIRD PARTY ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, OR RESULTING FROM ANY USE OR FAILURE OF PRODUCTS. THE TOTAL LIABILITY OF IMMUDEX UNDER THESE TERMS SHALL NOT EXCEED THE PURCHASE PRICE OF PRODUCTS CONCERNED ACTUALLY PAID. All claims must be brought within one (1) year of delivery, regardless of their nature.
10.2 This limitation of liability shall not apply to the parts of a product liability claim for Products delivered and actually paid by Customer within the applicable due date and for which Immudex is liable pursuant to the Danish Act on Product Liability or any applicable law of another member state of the European Union that transposes Directive 85/374/EEC, as amended, into national law of such EU member state.
10.3 Customer shall immediately notify Immudex in writing of any products liability claim or action brought with respect to Products based on alleged defects in the design or manufacture of Products or other adverse claim regarding Products. Upon receiving such written notice, Immudex shall have the right, but not the obligation, to assume and have sole control of the defence of any such claim or action, including the power to conduct and conclude any and all negotiations, compromises or settlements. Customer shall comply with all reasonable requests from Immudex for information, materials or assistance, with respect to the conduct of such defence.
11.1 Force Majeure shall include any circumstance beyond Immudex’ reasonable control including, without limitation, specific incidents of exceptional adverse weather conditions, lack of power supply, labour disputes, fire, war, restrictions attributable to international embargos or trade wars, travel or shipping restrictions or supply-chain interruption caused by a potential disease pandemic, acts of terror, other decisions by public authorities, major production plant disturbances, lack of deliveries from subcontractors or of raw materials, currency restrictions or lack of transportation. On providing written notice to Customer, Immudex reserves the right to suspend performance during the occurrence of any such excusable delay.
12.1 These Terms and all agreements for the sale and supply of Products by Immudex to Customer shall be construed in accordance with, and governed by, the laws of the Kingdom of Denmark, without regard to conflicts of law provisions. The terms and conditions set out in the United Nations Convention for the International Sale of Goods (CISG) and the Unidroit Agreement dated May 28th, 1988 are hereby expressly excluded. Unless otherwise agreed in writing, any dispute between the parties concerning Products shall be submitted to the exclusive jurisdiction of a competent court in Copenhagen, Denmark in the first instance (without restricting any rights of appeal).