General conditions of sale
January 2020
Contents
1. General information
2. Delivery of goods
3. Application
4. Inspection and rejection of non-conforming products
5. Price and payment for the goods
6. Limited Warranty
7. Returns
8. Disclaimer and Indemnity
9. Law compliance
10. Termination of the agreement
11. Confidential Information
12. Force Majeure
13. Other conditions
1. General information
1.1 These Terms of Sale (the “Terms”), any Trade Documents accompanying or referring to these Terms, as well as the Additional Terms, if any, include the full agreement (“Agreement”) between the limited liability company “MCT-Nano” ( MCT-Nano LLC or “Seller”) and the buyer (“Buyer”) in relation to the purchase and sale of goods (hereinafter – “Products”) and services (“Services”) specified in the Trade Documents. “Sales Documents” means any document, printed or digital, provided by the Seller during the buying and selling process, including but not limited to offers, invoices, documents confirming or accepting an order (“Order Confirmation”), and shipping documents. If the parties have signed a contract applicable to the sale of certain Products and / or Services, the terms of such a contract shall overrule to the extent that they do not comply with the Terms of Sale.
1.2 These Terms shall overruler the terms of any Buyer, regardless of when such terms are provided. Fulfillment of the Buyer’s order does not mean acceptance of any conditions of the Buyer and does not serve to amend or supplement these Terms.
1.3 Some products and services may be subject to additional terms (“Additional Terms”) not contained in this document, which, if necessary, may be referred to or provided in the sales documents or on the websites of the Seller or provided to the Buyer upon request.
1.4 An agreement between the Seller and the Buyer occurs when the Seller confirms or begins to fulfill the Buyer’s order. The Buyer cannot change or cancel the Agreement without the written consent of the Seller. Changes or cancellations may require the Buyer to pay certain costs incurred by the Seller.
2. Delivery of goods
2.1 Delivery dates specified by the Seller are not binding, and the delivery time does not matter. The seller is not responsible for any delays, losses, or damage during transportation.
2.2 Unless otherwise agreed in writing, the goods are delivered using standard packaging and delivery methods used by the Seller, for which a fee may be charged. Unless otherwise agreed by the parties in writing or specified in the Order Confirmation, the Products are delivered at the FCA Seller’s shipping center (INCOTERMS® 2010). In relation to the Products, ownership and the risk of loss shall pass to the Buyer at the time of transfer to the transport company.
2.3 The seller may, at his discretion, partially ship the Products and issue an invoice immediately. The buyer pays for the units sent, regardless of whether the buyer’s order is fully or partially executed.
2.4 For certain products, the Seller reserves the right (a) to demand the purchase of whole lots; and (b) distributes the supplies to the extent that such distribution is deemed imperative for the Seller among any or all buyers (including affiliates and distributors of the Seller) at its discretion, without liability for any damages that may result from this.
2.5 Seller determines the location of the Services. If the Services are provided on the side of the Seller or in a place authorized by the Seller, the Buyer is responsible for any shipping and transportation costs, including any insurance costs, if necessary. If the Services are provided on the Buyer’s side or elsewhere under the control of the Buyer, the Buyer is obliged to (a) cooperate with the Seller on all issues related to the condition of the Services and provide access to premises and structures that may be reasonably necessary or requested, including safe operation, environment (b) timely provide any requested materials, directions, information, approvals, permits or decisions ; and (c) ensure that such information is substantially complete and accurate.
3. Application
3.1 The Buyer must (a) comply with all instructions, restrictions, specifications, statements of use or terms of use provided by the Seller, including, without limitation, product data, product information, safety data sheets, information on limited use and labeling (“Application documents”) (B) to appropriately test, use, manufacture and sell Products and / or materials produced using the Products.
3.2 The Buyer acknowledges that the Products have not been tested for safety and effectiveness in food products, medicines, medical devices, cosmetics, commercial or any other use, unless otherwise expressly specified in the Application Documents. The Buyer is solely responsible for: (a) obtaining any necessary intellectual property permission related to the use of the Products, (b) complying with all applicable regulatory requirements and generally accepted industry standards, and (c) conducting all necessary tests and checks, including targeted suitability.
3.3 If the relevant Application Documents, including but not limited to a limited-use label license, indicate that the Products are offered and sold for research purposes only, the Buyer does not have express or implied permission from the Seller to use such Products for any other purpose, including without limitation, for in vitro diagnostic purposes, in food, medicine, medical devices or cosmetics for humans or animals, or for commercial purposes. The Buyer is not entitled to sell, distribute, resell or export the Products for any purpose, unless otherwise agreed in writing by the Seller.
4. Inspection and rejection of non-conforming products
4.1 The buyer must inspect the Goods no later than five (5) days after receipt (“Inspection Period”). The Buyer is deemed to have accepted the received Products, unless he notifies the Seller in writing of any Non-Compliant Products during the Inspection Period, providing evidence or other documentation, if necessary. “Non-conforming Products” means only those Products delivered or their quantity that differ from those indicated in the Order Confirmation.
4.2 If a notice is received in accordance with Section 4.1, the Seller, at its sole discretion, (a) replaces such Non-Compliant Products with the corresponding Products or (b) indicate the price of such Non-Compliant Products or, in case of partial delivery, adjusts the invoice to reflect the actual quantity delivered. Seller reserves the right to inspect products. The Buyer acknowledges and agrees that the protective measures set forth here are exceptional measures of Non-conforming Products delivery.
4.3 Any returns, if permitted, must be processed in accordance with Section 7 of these Terms.
5. Price and payment for the goods
5.1 The Buyer buys Products and Services from the Seller at the prices offered by the Seller, including, but not limited to, the prices in the current offer or the prices in the published price list, valid on the date of the corresponding Order Confirmation. If, prior to the shipment of the Goods, a price increase occurs, the Agreement will be interpreted as if it had originally included increased prices, and the Buyer should be invoiced by the Seller accordingly.
5.2 All prices do not include sales taxes, excise taxes, duties, customs duties, tariffs and any other similar taxes or fees of any kind imposed by any state body or quasi-state body on any amounts payable by the Buyer. The buyer is responsible for all such taxes and fees; provided, however, that the Buyer is not responsible for any taxes imposed on or in relation to the Seller’s income, income, gross proceeds, personal or real estate, or other assets.
5.3 The buyer must pay all invoices within 10 (ten) days from the date of the invoice to the specified bank account or otherwise, unless otherwise agreed in writing.
5.4 The buyer pays interest on all late payments at a lower rate of (a) eight percent (8%) per annum above the base interest rate of the Central European Bank or (b) at the highest rate acceptable in accordance with applicable law calculated daily and monthly. The Buyer is obligated to reimburse the Seller for all expenses incurred in receiving late payments, including, but not limited to, attorney fees. In addition to all other legal remedies available in accordance with these Terms or legislation, the Seller may, without notice to the Buyer, postpone the delivery of the Products and / or the execution of the Services and may, at its discretion, change the payment terms in relation to any undelivered Products and / or performed Services.
5.5 The Buyer is not entitled to withhold payment of any amounts due and payable under this Agreement due to any claim credit or dispute with the Seller.
6. Limited Warranty
6.1 Seller guarantees to the Buyer that the Products will meet the published Seller specifications within (a) one (1) year from the date of shipment of the Products or (b) the remaining shelf life or period until the expiration date of the Product, whichever is shorter.
6.2 The Seller guarantees that the Services will be provided in a professional manner in accordance with generally recognized industry standards for similar services, and the Seller allocates sufficient resources to fulfill its obligations under the Agreement. Any statement that the Seller has violated this obligation must be filed within ninety (90) days after the provision of the relevant Services.
6.3 Except for the warranties set forth above, Seller makes no warranties with respect to the Products (including any use thereof), the Services or any technical assistance or information that it provides, including (a) a guarantee of merchantability; (b) a guarantee of suitability for a particular purpose; or (c) a guarantee against infringement of intellectual property rights of a third party; whether expressed or implied by law, business practices, utilization, trade application, or otherwise. Any Seller offers regarding the use, selection, application or suitability of the Products shall not be construed as an explicit or implied warranty.
6.4 The limited warranties set forth above shall not apply if: (a) the Buyer does not notify the Seller in writing of the defect (s) immediately upon detection; (b) defect (s) confirmed by the Seller.
6.5 The limited warranty set forth in Section 6.1 does not apply if: (a) a defect occurs as a result of a breach of obligations in Section 3; (b) any unauthorized installation, repair, modification, modernization, technical maintenance or other maintenance of the Products occurs; (c) the defect results from normal wear and tear or a lack of proper maintenance; or (d) the products are used after the expiration date, as indicated in the relevant documents.
6.6 The limited warranty set forth in Section 6.2 does not apply if a malfunction or equipment defect is directly or indirectly associated with: (a) non-compliance with the Application Documents; (b) any misuse, theft, neglect, or unlawful actions on the part of the Buyer, its contractors or agents; (c) accidents or shipping damage; (d) electrical failure; (e) vandalism, explosion, flood or fire, weather or environmental conditions; if these restrictions apply, but the Seller, at his sole discretion, chooses to re-execute the relevant Services, the Buyer may be charged fees and expenses, including, but not limited to, transportation costs and any working hours of the Seller’s employees, contractors or agents.
6.7 Subject to the conditions set forth above in this section, including time limits specified in sections 6.1, 6.2 and 6.3, the Seller, at its sole discretion (a), will repair or replace the Products with respect to the Products, and if the Seller cannot repair or replace, Seller agrees to indicate the price of such Products, or parts thereof; or (b) in relation to the Services, re-execute the applicable Services or change the price of such Services at a proportional rate of the contract. The protective measures set forth in this document are the sole and exclusive protective measures of the Buyer and the Seller’s full for any violation of his warranty.
7. Returns
The buyer undertakes to check the goods for quality and, in case of non-compliance, inform the seller within 10 (ten) days from receiving the order. The seller must replace the goods of inadequate quality with a similar product, or reimburse the Buyers payment for the goods. If during this period the Buyer does not inform the Seller about the inadequate quality of the goods, then the goods are considered accepted by the Buyer and cannot be returned or exchanged. The Seller reserves the right to inspect the Goods on the side of the Buyer and /or require disposal instead of return. All returns must be made in accordance with the instructions of the Seller. Some products (for example, diagnostic reagents, refrigerated or frozen products, individual products or special orders) cannot be returned under any circumstances. Ownership of the returned Goods is transferred to the Seller after acceptance at the facility indicated by the Seller. Any returned products must be in the original packaging with the original label and unchanged in form and content.
8. Disclaimer and Indemnity
8.1 The Buyer assumes all risks and liability for loss, damage or injury to persons or property of the Buyer or other persons resulting from (a) the transportation, storage or use of the Products, and (b) any provision or use of the Services. If the seller’s fulfillment of its obligations was stopped or delayed by any action or inaction of the Buyer, its agents or subcontractors, the Seller will not be considered as violating his obligations or otherwise be liable for any costs, fees or losses incurred by the Buyer or others, in each case, to the extent that it is directly or indirectly associated with such a stop or delay.
8.2 The Seller, including its branches and their respective agents, employees and representatives, is exempt from liability for all losses, costs and expenses (including attorney’s fees) (a) arising from or in connection with the transportation, storage, sale or use of the Products, ( b) as a result of a breach of the Agreement by the Buyer and / or (c) as a result of negligence, recklessness or unlawful actions of the Buyer, his branches or their respective agents, employees, partners or subcontractors.
8.3 Unless otherwise expressly provided in this document, the Seller does not reimburse and is not liable to the Buyer or any private or legal person for any claims, damage or loss arising in connection with the Products, including their sale, transportation, storage. In addition, the Seller is not liable for incidental, indirect, approximate or special losses of any kind, including, but not limited to, liability for loss of use, loss of incomplete work, loss of income or profit, cost of replacement equipment or services, downtime or any liability of the Buyer to third party. The Seller’s general liability under this Agreement shall not exceed the purchase price of the Products or Services. Without limiting the provisions regarding warranty claims under this Agreement, all claims must be filed within 90 (ninety) days from the date of delivery of the Products or Services, regardless of their nature.
9. Law compliance
The buyer must comply with all applicable laws, rules and regulations, including, but not limited to, those that relate to the following: export controls, pharmaceutical, cosmetic and food products, the introduction or production and use of chemicals (e.g. toxic substances), bribery and corruption (e.g. the Foreign Corrupt Practices Act). The buyer retains all necessary licenses, permits and consent. The Buyer is required to comply with all applicable laws on export and import when purchasing Products under this Agreement and assumes all responsibility for all shipments governed by such laws. Seller may terminate the Agreement or suspend delivery if any government agency imposes anti-dumping or countervailing duties or any other fines on the Products.
10. Termination of the agreement
In addition to any other legal defense provided in this Agreement, the Seller may immediately terminate the Agreement after written notice if the Buyer: (a) does not pay any amount within the prescribed period; (b) violates these Terms, in whole or in part,; (c) becomes insolvent, files a petition for bankruptcy, or proceedings are initiated against it regarding bankruptcy, reorganization or assignment in favor of creditors.
11. Confidential information
All non-public, confidential or private information, including, but not limited to, specifications, samples, designs, plans, drawings, documents, data, business transactions, customer lists, prices, discounts disclosed by the Seller to the Buyer, regardless of whether they are disclosed orally, disclosed or available in written, electronic or other form, and also labeled, marked or otherwise defined as “confidential” or not, cannot be disclosed or used by the Buyer for his own applications, including but not limited to filing any patent applications that disclose or based on such confidential information, unless the Seller has not previously given a written permission. Upon request, the Buyer is obliged to immediately return or destroy all documents and other materials received from the Seller. The seller is entitled to an injunction for any violation of this section. This section does not apply to information that: (a) is in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully received by the Buyer on a non-confidential basis from a third party.
12. Force Majeure
None of the parties are liable to the other party, nor is it considered to have violated the Agreement for any failure or delay in fulfilling any condition of the Agreement (except for payment obligations), when, in the event of such failure or delay, it is caused or is the result of actions or circumstances, not reasonably controlled by such a party, including but not limited to natural disasters, floods, fires, earthquakes, government actions, war, terrorist threats or acts, riots or other Unrest, a state of emergency, a revolution, an embargo, trade wars, epidemics, strikes or other labor disputes, restrictions or delays affecting carriers, the inability or delay in obtaining adequate or suitable materials, a telecommunication interruption, a power outage or a production failure, provided that if the event in question continues for a period exceeding one hundred twenty (120) days, either party has the right to send written notice of termination of the Agreement .
13. Other conditions
13.1 No refusal by the Seller of any conditons of the Agreement is valid unless expressly agreed in writing. Any non-fulfillment or delay in the exercise of any rights, authority, powers or privileges arising from the Agreement shall not be valid and cannot be construed as a waiver of it.
13.2 The Buyer may not overstep any of his rights or delegate any of his obligations under the Agreement without the prior written consent of the Seller. Any alleged appointment or delegation in violation of this Agreement is void. No assignment or delegation shall exempt the Buyer from any of its obligations under this Agreement.
13.3 Relations between the parties are relations of independent contractors. The conditions contained in the Agreement should not be construed as the creation of any agency, partnership, joint venture or other form of joint venture, labor or fiduciary relationship between the parties, and neither of the parties has the right to enter into agreements or bind the other party to any in either way.
13.4 The agreement is intended solely for the benefit of the parties and nothing in this document is intended and does not provide any other person or organization with any legal rights, benefits or legal defence of any nature.
13.5. The Buyer is not authorized without the prior written consent of the Seller (a) to refer to the Seller, its affiliates, Products or Services in any marketing, advertising materials, in written or electronic form, or (b) use brand names, trademarks, trade names, logos, any textual information, graphic images, media files posted on the Seller’s website and other intellectual property owned by the Seller or one of its branches for any purpose.
13.6. All issues arising in connection with the Agreement or to it are regulated and interpreted in accordance with the internal legislation of the Russian Federation without any influence on the choice or conflict of legal norms or rules. Any legal action, action or litigation arising from or relating to the Agreement must be brought before the courts located in St. Petersburg (Russian Federation), and each party unconditionally submits to the exclusive jurisdiction of such courts in any such action or litigation.
13.7 Unless otherwise agreed by the parties, any notifications required by this Agreement must be made in writing and sent by courier, with tracking or registered mail, to the other party at its registered office or other address that the parties have notified each other with.
13.8 If any term or condition of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability should not affect any other term or condition of the Agreement, does not invalidate such term or condition in any other jurisdiction.
13.9 The conditions of this Agreement, which by their nature should be applied outside their terms, will remain in force after the termination or expiration of the Agreement, including, but not limited to, the following conditions: Sections 3, 6, 8, 11, 13.6 and
13.10 Unless otherwise specified in this document, the Agreement may be amended only in writing and signed by an authorized representative of each of the parties.
13.11 The Seller will request, process and use personal data (for example, the name of the contact person and address) from the Buyer in order to fulfill his obligations under the Agreement and to constantly ensure relations with the Buyer. The processing of the seller’s actions is governed by the privacy policy posted on the seller’s website.
