1. TERMS OF DISTRIBUTION
1.1 Distribution Right. If Quantabio has authorized Customer in writing to act as a distributor of Products, Quantabio hereby grants the Customer the right to resell the Product in the Territory subject to the terms and conditions contained herein. If Customer is an end-user of the Product, the foregoing distribution right shall not apply and Customer shall not further resell, distribute, or otherwise transfer the Product without Quantabio’s prior written consent.
1.2 Territory. The distribution Territory (the “Territory”) shall be worldwide.
1.3 Compliance. The Customer is responsible for compliance with all laws and regulations, regulatory requirements, guidelines and decisions of judicial or regulatory bodies which may apply to the distribution of the Product by Customer in the Territory. The Customer will ensure that its distribution of the Product in the Territory will not infringe on any patent and other proprietary rights of Third Parties.
1.4 Regulatory Approval of Product. Quantabio provides the Product for sale in the research market. Quantabio does not manufacture the Product in accordance with GMP. The Customer will be solely responsible for obtaining any regulatory approval that may be required for its marketing and distribution of the Product (e.g. CE mark under IVD requirements, FDA or equivalent).
1.5 Customer Technical Support. The Customer shall train its personnel and establish product information database such that the Customer can perform the technical support to its customers. The primary point of contact for the purposes of technical support to the Customer at Quantabio Technical Support is the following email address: firstname.lastname@example.org.
2. TERMS OF DELIVERY
2.1 Ordering. Customer shall place individual orders for Product via Quantabio’s designated EDI channel or by submission in PDF format to email@example.com. All orders are subject to written acceptance by Quantabio which acceptance will not be unreasonably withheld. No accepted order shall be modified or canceled except upon the written agreement of Quantabio and Customer.
2.2 Delivery; Affiliate Performance. Quantabio will use commercially reasonable efforts to deliver Product in accordance with accepted orders. All Product shall be delivered FCA (Incoterms 2010) Quantabio’s factory, or any other facility Quantabio may direct. Quantabio may use its Affiliates for carrying out the delivery of the Products or any other obligations under this Agreement. “Affiliate” shall mean any company or undertaking which directly or indirectly through one or more entities, controls or is controlled by, or is under common control with either party. Control shall mean the power to directly or indirectly direct the management and policies of the company or undertaking through for example the ownership of voting rights or by contract.
2.3 Terms and Conditions. These terms and conditions apply unless a dedicated Supply Agreement concerning the above mentioned Products has been mutually signed previously.
2.4 Transport Packaging. All Product delivered pursuant to this Agreement shall be packed for shipment in Quantabio’s standard containers.
2.5 Entry Inspection. In the event that the delivered Product fails to comply with the Specifications at the time of its receipt by the Customer or in the event that any delivered quantity of Product falls short of the ordered quantity, the Customer shall notify Quantabio in writing within a period of 14 (fourteen) days from receipt of the respective delivery of Products. Hidden defects, which could not be detected in an appropriate entry inspection, shall be notified to Quantabio within 14 (fourteen) days of detection, however not later than one year after receipt of the respective shipment of the Products. Quantabio shall without undue delay replace nonconforming Products or make up the shortage as the case may be, at the expense of Quantabio, or, at Quantabio’s option, refund the price of such Products or give the Customer a credit equal to the price of such Products provided that the Customer has already paid for such Product.
3.1 Changes. Quantabio reserves the right to change the Specifications or manufacturing process of the Products or to replace the Products with improved products.
4. PRICE AND PAYMENT
4.1 Price. The Price for the Product sold to the Customer under this Agreement is specified above. All Prices are exclusive of VAT and other taxes imposed by any government authority, all of which costs and taxes shall be borne by the Customer.
4.2 Invoicing and Payment. Payment for each invoice shall be made by the Customer within thirty (30) days from the date of receipt of such invoice or delivery of the respective order, whichever is later. The foregoing payment terms are contingent upon the creditworthiness of the Customer. Any invoices which remain unpaid more than thirty (30) days beyond the scheduled payment due date may be subjected to an interest charge at a rate of one-and-one-half (1.5) % per month or the highest rate permitted by applicable law, whichever is lower, calculated from the scheduled payment due date forward.
4.3 Payment Condiditions. At any time, when in Quantabio’s opinion the financial condition of Customer so warrants, or if Customer fails to make payment when due or otherwise defaults hereunder, Quantabio may change any terms of payment, suspend any credit previously extended to Customer, require partial or full payment in advance and delay shipment until such terms are met, and pursue any other remedies available at law. In such event, if Customer refuses to accept such changes, any outstanding order may be cancelled without any liability to Quantabio. In the event of bankruptcy or insolvency of Customer or in the event any proceeding is brought by or against Customer under any bankruptcy or insolvency laws or their equivalent, Quantabio may cancel any order then outstanding without liability to Customer.
5.1 Termination for Breach. In the event that either Party defaults or breaches any material term of this Agreement on its part to be performed or observed, the other Party shall have the right to terminate this Agreement by giving thirty (30) days’ written notice to the defaulting Party; provided, however, that in the case of a default or breach capable of being cured, if the said defaulting Party shall cure the said default or breach within such notice period after the said notice shall have been given, then the said notice shall not be effective.
5.2 Termination for IP infringements. In the event that the manufacture, use or sale of the Product(s) infringes or violates third party intellectual property rights (a “Third Party IP Claim”), Quantabio may, in its sole discretion, (i) obtain for Customer the right to continue to market, sell and distribute the Product(s), (ii) replace or modify the Product(s) so as to make the Product(s) no longer infringing or in violation of such third party intellectual property, or (iii) terminate Customer’s rights to re-sell the Product(s) in such territory by written notice effective upon receipt.
5.3 Termination for Bankruptcy. In the event that either Party files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof, then the other Party may terminate this Agreement effective immediately upon written notice to such Party.
5.4 Effect of Termination. Upon expiration or termination of this Agreement for any reason (a) each Party shall, except as otherwise provided in this Agreement, return or destroy all Confidential Information of the other Party; provided, that each Party may retain one copy for archival purposes only; (b) the Customer shall return to Quantabio all documentation of every kind related to the Product and cease all use of such documentation; (c) except for a termination for failure of the Customer to pay amounts due under this Agreement, the Customer’s orders for the Product received and accepted by Quantabio prior to the effective date of termination shall be fulfilled in accordance with the terms and conditions of this Agreement; and (d) the Customer shall pay all amounts due to Quantabio in accordance with this Agreement for all conforming Product delivered in fulfillment of accepted purchase orders, including any Price reconciliation payments required, if any, pursuant to Section 5.
6. WARRANTIES; LIMITATION OF LIABILITY
6.1 Defects. Quantabio hereby warrants that at the time of delivery, the Product shall conform to the Specifications.
6.2 Non-Infringement. Quantabio makes no representation or warranty that the Product and its intended use by the Customer and its end-customers does not infringe on any valid patent or other proprietary right of any Third Party and any liability of Quantabio regarding such use is hereby excluded.
6.3 Warranty Disclaimer. Quantabio does not warrant merchantability or fitness of the Product for the use intended by the Customer.
6.4 Limitation of Liability. The liability of Quantabio and its employees, agents, and Affiliates for any damages shall be limited to the value of the Customer’s respective order. This limitation of liability shall not apply in case of gross negligence or willful misconduct on the part of Quantabio.
7.1 Indemnification by Customer. Customer will indemnify, hold harmless and defend (collectively, “Indemnify”) Quantabio, its Affiliates and their respective directors, stockholders, employees and agents (each a “Quantabio Indemnitee”) from and against any and all losses, damages, liabilities, judgments, fines, amounts paid in settlement, expenses and costs of defense (including without limitation reasonable attorneys’ fees and witness fees) (“Losses”) resulting from any claim, action or proceeding brought or initiated by a third party (“Third Party Claim”) against them to the extent that such Third Party Claim arises out of (a) the use, marketing, sale or distribution of the Product(s) by Customer, or (b) the breach by Customer of this Agreement, except such indemnity shall not apply to the extent that any such Losses arises from the gross negligence or willful misconduct of any Quantabio Indemnitee.
7.2 No Limitation of Rights. The indemnification rights of an indemnified party under this Agreement are in addition to all other rights which the indemnified party may have at law or in equity or otherwise.
8.1 Confidentiality. Neither Party may publicly disclose the terms of this Agreement without the prior written consent of the other Party. This obligation shall survive any termination of this Agreement.
8.2 Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of Massachusetts, without regard to the application of principles of conflicts of law. The United Nations Convention of Contracts for the International Sale of Goods shall have no application to this Agreement and is hereby excluded. All disputes arising out of or in connection with this Agreement shall be finally settled under the AAA Commercial Arbitration Rules by one arbitrator appointed in accordance with the said Rules.
8.3 Amendment; Waiver. This Agreement may be amended, modified, superseded or canceled, and any of the terms may be waived, only by a written instrument executed by each Party The delay or failure of any Party at any time or times to require performance of any provisions shall in no manner affect the rights at a later time to enforce the same.
8.4 Independent Contractors; No Agency or Partnership. The relationship between Quantabio and the Customer is that of independent contractors. Nothing contained in this Agreement shall give either Party the right to bind the other, or be deemed to constitute the Parties as agents for the other or as partners with each other or any Third Party.
8.5 Assignment and Successors. This Agreement may not be assigned by either Party without the written consent of the other, except that each Party may assign this Agreement and the rights, obligations and interests of such Party, in whole or in part, to any of its Affiliates.
8.6 Force Majeure. Neither Quantabio nor the Customer shall be liable for failure of or delay in performing obligations set forth in this Agreement, and neither shall be deemed in breach of its obligations, if such failure or delay is due to natural disasters or any causes beyond the reasonable control of Quantabio or the Customer including any civil commotion, strike or other industrial dispute, including third party intellectual property claims for which the Party affected is not grossly negligent. In the event of such force majeure, the Party affected thereby shall (a) promptly notify the other Party in writing and (b) use reasonable efforts to cure or overcome the same and resume performance of its obligations hereunder. If such failure shall continue for a period of more than three (3) calendar months, the other Party may terminate this Agreement upon written notice to the Party affected.
8.7 Integration; Severability. This Agreement is the sole agreement with respect to the subject matter hereof and supersedes all other agreements between the Parties with respect to same. Should any provision of this Agreement be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provision shall, to the extent permitted by law, be deemed replaced by such valid, effective and enforceable provision as comes closest to the economic intent and purpose of such invalid, ineffective or unenforceable provision. The aforesaid shall apply mutatis mutandis to any gap in this Agreement.