Terms and conditions
Updated September 2024
1. CONTRACT TERMS
These are the exclusive general terms and conditions of sale by OPM Biosciences Inc. ("OPM") to Buyer ("Buyer"), for the products. These Terms, together with the Quotation (if any), Purchase Order (if any) and Supplementary Terms (if any), create the Contract (“Contract”) between OPM and Buyer for the purchase and sale of Products. The Contract is created when OPM accept the Purchase Order(“PO”), either by sending a written confirmation, or by shipping the product or otherwise initiating action to provide what the Buyer has ordered. Except as otherwise explicitly provided in a binding applicable master sales agreement or other negotiated agreement (which, if applicable, will apply in accordance with its terms), the sale by OPM of Products as specified in the Contract is subject to the terms and conditions set out herein as follows. If any conditions within the Contract documents conflict with each other, the precedence shall be as follows: (i) Supplementary Terms, (ii) OPM’s Quotation, (iii) OPM’s General Terms And Conditions Of Sale, and (iv) the Buyer’s Purchase Order(“PO”).
2. DEFINITIONS
2.1. “Affiliate(s)” means, with respect to a party, any entity controlling, controlled by or under common control with such party, where control means direct or indirect ownership of at least 50% of the voting stock or interest in any Person or control of the composition of the board of directors or equivalent body thereof.
2.2. “Change of Control” means, with respect to Customer, (i) any “person” or “group” ,who or which was not an Affiliate of Customer as of the date hereof and who or which becomes the “beneficial owner” of more than fifty percent (50%) of the total voting power of all classes of voting stock of Customer or (ii) any merger, consolidation or sale of all or substantially all of the assets or undertakings of Customer to any other Person.
2.3. “Confidential Information” means, with respect to a party, subject to the exceptions set forth herein, any information of a confidential, proprietary or secret nature, in whatever form or media, relating to such party or any of its Affiliates or their respective businesses or operations, whether or not technical in nature and whether or not the information has been provided or disclosed prior to or after the date of this Agreement (together with any notes, summaries, reports, analyses or other material derived by Recipient of such information or its Representatives that contain or otherwise reflect such information) which has been marked as confidential or which a reasonable person in the life sciences industry would know to be confidential.
2.4. “Damages” means any and all damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses in connection with any action, suit or proceeding).
2.5. “Documentation” means the then currently, published, by OPM or its Affiliates, Product specifications in effect at the time of sale, as set forth in the Product documentation, specifications and/or accompanying package inserts.
2.6. “Field” means life science applications within the biopharmaceutical industry.
2.7. “Intellectual Property Rights” means all worldwide (i) inventions, whether or not patentable, (ii) patents and patent applications, (iii) trademarks, service marks, trade dress, logos, internet domain names and trade names, whether or not registered, and all goodwill associated therewith, (including the Trademarks), (iv) copyrights and related rights, whether or not registered, (v) computer software, data, databases, files and documentation and other materials related thereto, (vi) trade secrets and confidential, technical and business information, (vii) all rights therein provided by bilateral or international treaties or conventions and (viii) all rights to sue or recover and retain damages and costs and attorney’s fees for past, present and future infringement or misappropriation of any of the foregoing.
2.8. “Product(s)” means any products provided by OPM.
2.9. “Representatives” means, with respect to a party, such party’s or its affiliates’ officers, directors, employees, representatives and agents.
2.10. “Specifications” means those specifications provided in the then currently published or available on line OPM Product literature as of the date of order fulfillment.
2.11. “Trademarks” shall mean all trademarks, service marks, logos, internet domain names and trade names, whether or not registered, and all goodwill associated therewith, associated or used in connection with the Products together with all other trade dress, labels, designs, markings, notices or other means of identification which are part of or applied to any Product or its packaging.
3. Custom Products
3.1. If Buyer desires to purchase customized or special Products (“Custom Product(s)”) from OPM (unique raw materials (including but not limited to Buyer supplied raw materials), special manufacturing processes or labeling or otherwise) and if OPM, in its sole discretion, is willing to consider the same, then OPM will prepare a written proposal for the price indicated, either as part of a price quotation, part of a bid submission or otherwise (a “Custom Quote”) for such Custom Product. Any change to specifications requires a new Custom Quote. OPM will not accept an order for Custom Products unless OPM has issued a Custom Quote for those Custom Products. Custom Products may be subject to a price increase at any time before or after issuance of a Custom Quote due to changes in raw material prices. Orders for Custom Products may not be cancelled after forty eight (48) hours after OPM’s acceptance for Buyer placement of an Order. OPM disclaims any liability for: (i) the efficacy or compatibility of components provided or specified by Buyer in the manufacture of Custom Products; and (ii) the performance of Custom Products within ranges desired by Buyer, even if those ranges are communicated to OPM or are included in specifications for the Custom Products. Buyer must pay for initial lots of Custom Products so long as they comply with Buyer specifications, even if those Custom Products fall outside of Buyer’s desired performance ranges for Buyer’s own applications. In the event of an overage or shortage in a batch of Custom Products that OPM manufactures to fill an order, OPM may ship the entire batch, which shall be deemed to satisfy the order so long as the variance does not exceed +/- 10% of the quantity ordered. Buyer shall indemnify OPM against any Damages resulting from infringement of patents or other intellectual property rights of a third party arising from OPM’s compliance with Buyer’s special specifications or instructions.
4. DELIVERY, TITLE AND ORDERING
4.1. OPM shall use commercially reasonable efforts to (i) avoid delay in delivery or performance on the delivery date specified in the purchase order and (ii) give Buyer sufficient notice of any delay in delivery on such specified delivery date. Failure to deliver by such specified delivery date shall not be a sufficient cause for cancellation of any such order and OPM shall not be liable for any Damages arising as a direct or indirect result of any such delay in or failure to deliver any Products hereunder.
4.2. Delivery terms shall be construed according to the latest edition of Incoterms as applicable. Unless expressly specified otherwise in the Contract, the Products will be delivered FCA (Incoterms) to the address which is specified by the Buyer. Sometimes Products may be delivered in instalments.
4.3. Products are delivered when the products are handed over to the Buyer. Buyer shall be responsible for the Damages to the goods and other risks from the point of delivery.
4.4. Buyer shall not refuse to accept delivery of any Products tendered in accordance with the Contract.
4.5. Where delivery of any Product requires an export license or other regulatory or legal authorization prior to shipment, OPM shall not be responsible for any delay in delivery due to delay in, or refusal of, such license or authorization.
4.6. OPM shall issue to Buyer a “Certificate of Analysis” (if any) for each lot of Product shipped to Buyer, which shall verify that the Product is in compliance with the Specifications.
5. INSPECTION AND ACCEPTANCE
5.1. Buyer shall visually inspect each shipment of Product upon its arrival at the specified destination for shortage, loss, damage or obvious nonconformity with the Specifications. Buyer shall notify OPM in writing within five (5) days of receipt of a Product of any short delivery or defect in any Product. If Buyer rejects any nonconforming Products, within the timeline stated above, as substantiated and agreed to by OPM, OPM’s sole obligation with respect thereof shall be, at its option, replace or repair any undelivered or defective Product or make up the shortage as soon as reasonably possible. Buyer will return any rejected Product to OPM, at OPM’s expense. For the avoidance of doubt, Buyer shall not have any right to return Products for a refund after delivery except for products shipped in error that are different from the Products listed in the Quotation.
5.2. Buyer will be deemed to have accepted any Product unless Buyer notifies OPM of the rejection of such Product and the reasons for such rejection within ten (10) days after receipt of such Product. If Buyer fails to accept delivery of any Product within ten (10) days after receiving notice from OPM that the Products are ready for delivery, OPM may dispose of or store such Products, at Buyer’s expense.
6. PRICE
6.1. Subject to the remainder of this Section 6, the price payable by Buyer for (i) the Product(s) and/or Services (the “Price”) and (ii) delivery of the Products (“Shipping and Handling”) under the Contract ((i) and (ii) together, the “Contract Price”) will be as specified in the Quotation provided by OPM.
6.2. All payments due and payable by Buyer to OPM under this Agreement are exclusive of any Value Added Tax (“VAT”), sales and use tax, goods and services tax and similar indirect taxes. In the event that any VAT, sales and use tax, goods and services tax and similar indirect taxes are properly due under any applicable law, regulation or otherwise (“Buyer’s Taxes”), this shall be charged by OPM in addition to any other payments due under this Agreement and shall be payable by the Buyer on receipt of a valid invoice issued by OPM, unless Buyer provides OPM with valid exemption documentation allowing OPM not to charge the relevant indirect taxes. In addition, all payments shall be made by Buyer in full, free and clear of all deductions (including but not limited to withholding taxes). Buyer shall gross-up the amounts due hereunder in order that the payments provided for in this Agreement are paid fully such that OPM is in the same position as if no withholding had taken place. Buyer shall furnish to OPM within one (1) month accurate official receipts from the appropriate governmental authority for all deducted or withheld taxes.
6.3. All Quotations issued by OPM for the supply of Products are valid for the period stated in the Quotation or, if none is stated, for sixty (60) days from the date the Quotation was issued. If OPM and Buyer fail to reach a compromise on the new offer, OPM has the right to terminate this Contract without any liability.
6.4. Unless expressly specified in writing, the Price does not include Installation or any other services and, if any such services are required by Buyer, OPM may charge a fee at its then-current rate for any Services performed.
6.5. If either (A) delivery is requested beyond the calendar year in which (i) OPM provided the Quote (if any) or (ii) Buyer submitted the PO, or (B) the confirmed delivery date is not in that calendar year, then OPM reserves the right to revise the Price and/or Shipping and Handling to reflect pricing applicable in the calendar year of delivery.
6.6. OPM may at any time, on written notice to Buyer, modify the Contract Price for Products to acknowledge and mitigate the impact of increases in OPM’s and/or its Affiliates’ costs relating to manufacturing, raw materials, energy, labor, logistics, freight and/or currency fluctuations. Such modification shall not exceed 5% of the Contract Price for such Products.
6.7. The Price of Products includes standard shipping. OPM reserves the right to impose a Shipping and Handling charge for non-standard shipping (defined by OPM). For Cell Culture Products, such Shipping and Handling charges may be calculated and added to OPM’s invoice at the time of shipping from OPM’s facility.
7. PAYMENT
7.1. Unless expressly specified in the Contract, Buyer shall make the payments within 30 days from the invoice date in the currency specified in the invoice. Each order is a separate transaction, and Buyer may not set-off payments from one order against another. If any payment is overdue, OPM may suspend delivery or cancel the Contract, reject future orders, and charge a late-payment charge, in each case calculated on a daily basis from the due date until paid, at the rate of twelve percent (12%) per year or, if less, the maximum amount allowed by law. Buyer agree to pay this late charge when OPM demand. OPM may set-off any outstanding amounts due to OPM by Buyer against any and all payments due by OPM to Buyer hereunder.
8. RESTRICTIONS ON USE
8.1 All Products are for use within the Field. Use restrictions are a condition to the purchase of certain Products hereunder. Buyer must strictly comply with all use restrictions with respect to a Product that may be set forth in the Contract, OPM’s catalogue or website, on the Product, in any documentation or label accompanying the Product or otherwise provided in writing to Buyer. Unless otherwise first agreed in writing by OPM, in no event shall (i) any Product intended by OPM for research and development use be used in a manufacturing process or in a manufactured product or (ii) any Product be used in medical, clinical or diagnostic applications.
8.2. Buyer shall not use or permit the Products to be used in any manner that does not comply with all Applicable Laws. Any warranty granted by OPM with respect to the Products shall be deemed void if any Product covered by such warranty is used for any purpose not permitted hereunder or otherwise in violation of any use restrictions referred to the Contract.
9. NO RE-SALE
9.1. Buyer represents that it is purchasing the Products for its own use consistent with the terms of the Contract. Buyer shall not at any time, without the express prior written consent of OPM, re-sell, assign, transfer or distribute the Products to any other Person or to export the products to other countries to which OPM delivers the Products. Buyer acknowledges that any agreement by OPM to allow Buyer to re-sell or distribute Products shall be subject to OPM’s dealer compliance process.
10. EXPORT CONTROL.
10.1. Buyer shall not export the Products or any information or documents provided hereunder without the requisite export license from the relevant body of the United Nations or other similar international organization, the country of origin or the original country of export. The requirement to obtain a license may vary depending on the country of destination, the end user, the end use and other factors. Upon request from OPM, Buyer shall furnish OPM with copies of all documents relating to such export (if any).
11. WARRANTY
11.1. Products are warranted to perform in substantial conformity with the Documentation in the Field and to be free from defects in material and workmanship. The warranty provided herein is valid only when used by properly trained individuals.
11.2. Buyer’s exclusive remedy for non-conforming Products during the warranty period is limited to replacement of or refund for the non-conforming Product(s), at OPM’s sole option. Notwithstanding anything to the contrary herein, OPM shall have no liability under any representation or warranty given by it with respect to: (i) the use of the warranted Product in combination with any software, tools, hardware, equipment, supplies, accessories or any other materials or services not furnished by OPM or recommended in writing by OPM; (ii) any defect in the Products arising from specifications or materials supplied by Buyer; (iii) fair wear and tear or; (iv) fraud, willful damage or negligence of Buyer or any of its Affiliates or Representatives; (v) shipping, storage or working conditions after OPM’s delivery of the Products to the Buyer; (vi) failure to follow OPM’s use restrictions, recommendations or instructions; (vii) any alteration, modification, repair or enhancement of the warranted Product by Buyer or any third party, without OPM’s prior written consent; (viii) any misuse of the Products or Buyer’s use of the Products not in accordance with OPM’s specifications; (ix) any allegation that Buyer’s use of the Products infringes the Intellectual Property Rights of any other Person; (x) any Product damaged or lost as a result of a Force Majeure Event; or (xi) any Product, if the price payable for such Product has not been paid in full in accordance with the terms of the Contract.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. All right, title and interest worldwide in the Intellectual Property Rights in or associated with the Products (including the Trademarks) shall at all times remain vested solely and exclusively in OPM or its Affiliates or licensors. OPM grants to Buyer a limited, non-transferable right, for only Buyer to use the quantity of the Products that have bought from OPM in accordance with the Contract. Nothing in the Contract or otherwise shall be construed in any way to grant to Buyer or any of its Affiliates or Representatives any express or implied option, license or other right, title or interest in or to any Confidential Information of OPM, any Trademark or any Intellectual Property Right owned by or licensed to OPM or any of its Affiliates.
12.2. Where Buyer provides designs, formulations, drawings or specifications to OPM to enable it to manufacture Custom Products, Buyer warrants that such manufacture shall not infringe any Intellectual Property Rights of any other Person. OPM shall not be liable to Buyer for any damage or loss resulting from any specifications or other Intellectual Property furnished by or on behalf of Buyer to OPM or its Affiliates, agents or subcontractors.
12.3. Ownership to all Intellectual Property (a) owned by OPM and/or its Affiliates as of the date of the Contract, including, without limitation, all underlying Intellectual Property rights in the designs, processes and procedures of the Custom Products, or (b) developed by or on behalf of OPM and/or any of its Affiliates or sub-contractors in connection with a Purchase Order, shall at all times remain vested in OPM or its Affiliates (as applicable).
12.4. Buyer may only use those processes, know-how, drawings and other technical documentation in connection with the Custom Products which are supplied by OPM or its Affiliates (in writing or on electronic media). Such information shall be kept confidential in accordance with Buyer’s confidentiality obligations set forth herein.
13. INDEMNITY
13.1. By OPM. OPM agrees to indemnify, defend and hold harmless Buyer from and against any and all Damages incurred or suffered by Buyer arising, directly or indirectly, for injury to or death of persons or damage to property to the extent caused by the fraud, gross negligence or willful misconduct of OPM or its Representatives in connection with the Contract.
13.2. By Buyer. Buyer will indemnify, defend and hold harmless OPM and its Affiliates and their respective Representatives against any and all Damages (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred or suffered by OPM or such Persons arising, directly or indirectly, from or in connection with: (i) the negligence or willful misconduct of Buyer or its Representatives; (ii) Buyer’s use contrary to OPM documentation, marketing or distribution of the Products (including any use of the Products for any non- research purpose or by a non-technically qualified individual) or the end products manufactured by the Buyer; (iii) use of a Product in combination with equipment or software not supplied by OPM where the Product itself would not be infringing; (iv) OPM’s compliance with designs, specifications or instructions supplied to OPM by Buyer; (v) use of a Product in an application or environment for which it was not designed; (vi) modifications of a Product by anyone other than OPM without OPM’s prior written approval; (vii) any breach by Buyer of any of its covenants, agreements, representations, warranties or other obligations in this Agreement; (viii) any fraud, gross negligence or willful misconduct of Buyer or its Representatives in connection with this Agreement; or (ix) any claim or allegation of infringement of any third party’s intellectual property rights arising out of or in connection with Buyer’s use and/or exploitation of any Products.
14. LIMITATIONS OF LIABILITY
14.1. Notwithstanding anything to the contrary contained herein, the total liability of OPM and its affiliates, and their respective representatives, arising out of or in connection with the Contract or the products, whether in contract, tort (including negligence), statute or otherwise, shall, to the maximum extent permitted by applicable law, be limited to damages in an amount equal to the lesser of: (i) the amount paid to OPM pursuant to the Contract creating such liability; or (ii) the aggregate amount equal to the sales of products creating such liability made under the Contract during the three (3) month period immediately preceding such claim for liability. Notwithstanding anything to the contrary contained herein, in no event will OPM be liable for any indirect, special, consequential or incidental damages (including without limitation damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), regardless of whether OPM has been informed of the possibility of such damages.
15. CONFIDENTIALITY
15.1. Each party (the “Recipient”) may receive or have access to certain information of the other party (the “Discloser”) that is Confidential Information of Discloser. Recipient agrees to keep Discloser’s Confidential Information confidential and not to disclose such Confidential Information, in whole or in part, to any person, other than to Recipient’s Representatives who need to know such Confidential Information for the purpose of the Contract, who are informed of the confidentiality obligations of Recipient hereunder and who are bound by substantially equivalent confidentiality obligations as Recipient.
15.2. Recipient will not use, or allow the use of, the Confidential Information of Discloser for any purpose other than in the furtherance of the Contract between the parties.
15.3. Confidential Information shall not include any information that:
a) was publicly available prior to the date of the Contract;
b) was already known by Recipient on a non-confidential basis prior to its disclosure to Recipient or its Representatives;
c) Recipient can demonstrate was independently developed by it without reference to any information comprising Discloser’s Confidential Information;
d) was rightfully received from a third party with no duty of confidentiality;
e) disclosed by Recipient with Discloser’s prior written consent; or
f) is required to be disclosed by the recipient pursuant to a legally enforceable order, judgment, law or regulation; provided that any such disclosure shall only be made to the extent necessary to comply therewith.
15.4. Recipient shall, at the earlier to occur of (i) the request of the disclosing party or (ii) upon expiration or termination of this Agreement, promptly either destroy or return to the disclosing party all Confidential Information disclosed hereunder or thereunder, along with any and all copies thereof (save for one copy for record purposes and copies made by and existing only on its backup systems), and shall immediately cease using the same.
15.5 This Section 15 shall survive for a period of five (5) years after the expiration or termination of the Contract. FORCE MAJEURE
16. FORCE MAJEURE
16.1 Neither Party shall be liable for any failure of or delay in performing any of its obligations under the Contract (other than any payment obligation), and neither Party shall be deemed to be in breach of any of its obligations hereunder, if such failure, delay or breach is due to any cause beyond the reasonable control of such Party, including, without limitation, war, terrorism, riots, fire, explosion, flood, earthquake, insurrection, embargo, strikes of employees, currency restriction, shortage of transport, inability to obtain power or fuel, general shortage of material, acts or omissions of governments in their sovereign capacity or failure of public utilities or common carriers, embargoes, shortage of or inability to obtain supplies (each, a “Force Majeure Event”). Such non- performance will be excused for as long as such Force Majeure Event shall be continuing. The non-performing Party shall give prompt written notice to the other Party of such Force Majeure Event. If the Force Majeure Event exceeds sixty (60) days, OPM may immediately terminate this Agreement without liability.
17. DELAY, SUSPEND AND CANCEL THE CONTRACT
17.1 Buyer may not cancel, modify or (save as expressly specified herein) terminate the Contract, nor delay, defer or change deliveries (including delivery dates notified by OPM) under the Contract, nor return any Products (each a “Contract Reduction”), without OPM’s express prior written consent. Such consent may be withheld at OPM’s sole discretion and shall only be granted on the condition that Buyer pays all fees, charges and/or costs that OPM determines as being applicable as a result of such Contract Reduction, including all termination/ cancellation fees, restocking fees, storage fees, insurance and freight fees.
17.2 If Buyer terminate the Contract unilaterally, OPM are entitled to require the liquidated damages as follows: (i) 30% of total contract price for universal products, or (ii) manufacturing costs incurred by OPM, added 30% of the total contract price for particular products.
18. TERMINATION
18.1 The Contract may be terminated by either party as follows:
a) immediately upon such Party providing written notice to the other Party if such other Party breaches any provision of the Contract in any material respect and fails to remedy such breach within thirty (30) days after the non-breaching Party delivers written notice of the breach to the breaching Party; or
b) immediately upon written notice with respect to a Party in the event of (A) such Party’s insolvency, receivership, or voluntary or involuntary bankruptcy; (B) an assignment by such Party for the benefit of creditors; or (C) any substantial part of such Party’s property being or becoming subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without being released or satisfied within thirty (30) days thereafter.
18.2 In the event of a Change of Control of Buyer, OPM may immediately terminate the Contract in its entirety, or in part with respect to one or more Products, upon written notice to Buyer.
18.3. Termination or expiration of the Contract shall not relieve Buyer of its obligations hereunder and OPM shall retain all remedies after such termination or expiration. If OPM terminates the Contract, all amounts payable hereunder shall become immediately due and payable as of the date of termination.
18.4. Upon termination or expiration of the Contract, Buyer shall promptly return to OPM all property of OPM or any of its Affiliates or Representatives, including all Confidential Information of OPM.
19. GOVERNING LAW
19.1. The Contract shall be governed by and construed in accordance with the substantive laws of the State of California excluding its provisions governing conflicts of laws and the Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
19.2. The Parties here to agree that any dispute, controversy, or claim relating to the Contract (“Dispute”) shall be resolved first through good faith negotiations between the Parties. If the Dispute is not otherwise resolved through negotiation or non-binding mediation within a reasonable time period, the Parties hereby irrevocably submit to (and waive any objection on the grounds of inconvenient forum or otherwise concerning) the exclusive jurisdiction of the courts of the State of California.
20. MISCELLANEOUS
20.1. Assignment. Neither Party may assign, delegate or otherwise transfer the Contract, in whole or part, or any right, remedy, obligation or liability arising hereunder or by reason hereof, except with the prior written consent of the other Party hereto; provided that OPM may assign the Contract without Buyer’s consent (i) to one or more of its Affiliates or (ii) to a successor to that portion of its business to which the Contract pertains. Subject to the foregoing, the Contract shall inure to the benefit of and be binding upon the Parties hereto and their respective permitted successors and assigns. OPM may sub-contract any part of the Contract to an Affiliate or third Party as determined by OPM.
20.2. Amendments. No provision of the Contract may be modified or amended except in a writing signed by both Parties.
20.3. No Third-Party Beneficiaries. the Contract is entered solely by and between, and may be enforced only by, the Parties hereto (and their respective permitted successors and assigns) and, except to the extent expressly provided for herein, is not intended to confer on any other Person any rights, remedies, obligations or liabilities under or by reason of the Contract.
20.4. Severability. If any provision of the Contractor the application there of in any particular circumstance, is held illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect any other provision hereof and the remaining provisions of the Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
20.5. Waiver. Failure by either Party hereto to enforce any rights under the Contract shall not be construed as a waiver of such rights nor shall a waiver by either Party hereto in one or more instances be construed as constituting a continuing waiver or as a waiver in other instances.
20.6. Technical Assistance. OPM will not be liable to Buyer for any technical assistance or information related to the products given by OPM or any suggestions by OPM regarding the use, selection, application or suitability of products by Buyer. No employee, agent or representative of OPM has authority to modify these terms or to make any other representation or warranty concerning the OPM Products except by written document executed by both Parties.