Standard Terms & Conditions of Sale
Scope: OpGen, Inc. Standard Terms and Conditions will apply to the purchase and sale of all OpGen Inc. (OpGen) products and services and will constitute the entire agreement between OpGen and Customer, unless expressly agreed otherwise. Our products and services are sold with restrictions on the use of those products and services as outlined in our quotation, our label licenses and other product information. The customer agrees as a condition of sale to comply with any and all of these restrictions.
1. Definitions: ‘Applicable Law’ means any local, state, federal or foreign law. regulation, guideline or rule applicable to the subject matter of the Standard Terms and Conditions, including without limitation, regulations and guidelines promulgated by the FDA. NIH or KPA, and laws and regulations regarding export control and waste disposal. ‘Customer Application’ means any product, process or other application identical to, included in, based on, or developed or derived from any Product. ‘Customer Material’ means any Customer-supplied DNA, cells, biological material or information, including nucleic acid sequence information related to Products. ‘Product’ means any product as specified and ordered by Customer in a purchase order as accepted in writing by OpGen, including any revisions to any such product agreed to in writing by OpGen.
2. Purchase Orders: Purchase orders for Products must be submitted in writing and executed by Customer. All purchase orders are subject to OpGen’s written acceptance. Customer acknowledges and agrees that certain services may be speculative and technically difficult or impossible to achieve through current Optical Mapping methods and processes. In certain circumstances, OpGen may make an initial assessment that a requested service is likely to be technically difficult or impossible to achieve, in which case, OpGen will notify Customer thereof. Upon so notifying Customer, OpGen may specify a non-refundable upfront fee that will be invoiced to Customer upon receipt of a purchase order requesting such service. All such non-refundable upfront fees will be fully creditable against the total amount due if and when such requested service is successfully achieved and delivered to Customer hereunder. In any event, if after making commercially reasonable efforts. OpGen determines that a service cannot be mapped as requested, OpGen will promptly notify Customer of such determination, and the purchase order will be deemed canceled solely as to such service. Customer will have no further obligations as to such service, except with respect to any non-refundable upfront fees then outstanding and due in connection such service.Any revision to or cancellation by Customer of an accepted purchase order will be subject to OpGen’s written prior approval, and may be subject to a revision or cancellation fee.
3. Shipping, Delivery: Product will be shipped to Customer FCA, Free Carrier. While a target delivery date may be provided to Customer, the delivery date may not be construed as a guaranteed delivery date. OpGen may make partial shipments in fulfilling a purchase order, in which case, each such partial shipment will for all purposes beconsidered a separate transaction under these Standard Terms and Conditions. OpGen will not be liable in any event for any damage or penalty for delays or failure to give notice of delay. Title and risk of loss in the goods will pass to theCustomer upon OpGen’s delivery to carrier at the shipping point.
4. Payment Terms: Payment terms may be granted upon a standard credit review and approval. The customer agrees to provide standard financial information as requested by OpGen to facilitate this review. If credit terms are not approved, payment will be required before shipment of product or the provision of services. Except as expressly provided hereunder, the total amount due will be invoiced upon shipment of the product or service results. All non-refundable upfront fees will be invoiced upon receipt of the purchase order and credited against the total amount invoiced upon shipment of the product or service. All invoices will be due and payable in full, without counterclaim or deduction, within thirty (30) days after Customer’s receipt of invoice. Payment must be made by wire transfer, check or other method agreed by OpGen. Past due amounts will bear a late payment charge of 1.5% per month (or the highest amount allowed by law, if lower) until paid in full. Customer agrees to reimburse OpGen for all collection costs (including attorneys’ fees) incurred by OpGen in connection with late payments.
5. Taxes: Unless expressly provided otherwise, all amounts quoted are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and similar assessments on the sale, transport or use of any Product. Customer will be responsible for all surcharges.
6. Restrictions: Products and services manufactured or delivered by OpGen are for laboratory research use only and not for use in humans, or for clinical, diagnostic or therapeutic purposes, or in violation of any Applicable Law. Further, such products and services are for end Customer’ use only and not for resale. Any resale of products or services requires OpGen’s prior written consent.
7. Returns and Allowances: All sales are considered final. OpGen warrants that OpGen products and services meet the specifications in the product or service literature or in this quotation. OpGen agrees to repair or replace equipment under the terms of its warranty. OpGen agrees to replace consumable products free of charge if the product does not conform to the OpGen specifications or, at its sole discretion, to refund the purchase price. The Customer acknowledges that the sole remedy for a defective consumable product is to obtain a free replacement of that product and that this remedy is in lieu of all other remedies or claims for damages, consequential or otherwise, that the Customer or other third parties may have against OpGen. For OpGen services, OpGen will use its best commercial efforts to provide the quoted services to the Customer. Nevertheless, the Customer acknowledges that certain services are speculative, and understands that not all services are achievable through current technology. The customer acknowledges that the sole remedy for any incomplete service is a replacement service or a refund of any amounts paid.
8. Safety and Security: Customer represents and warrants that any Customer Material is (i) subject to a Biosafety Level rating no greater than 2, as specified in the current NIH guidelines for Research Involving Recombinant DNA Molecules and (ii)not a ‘Select Agent’ or ‘Toxin’ subject to the US Select Agent Provisions of the Public Health Security, the Bioterrorist Preparedness and Response Act of 2002 or the US Agricultural Bioterrorism Protection Act of 2002. All Customer Material with a Biosafety Level 2 rating will be subject to special conditions, including but not limited to the submission of methanol killed cells. Customer acknowledges that OpGen maintains a secure information archive relating to ordered Products (with limited exceptions), in accordance with its Safety and Security Policy.
9. Proprietary Rights: OpGen retains all proprietary rights in and to all designs and other technology and information pertaining to the Products. In furtherance and not in limitation of the preceding sentence, OpGen will at all times retain sole and exclusive ownership of all software included in or provided in connection with the Products (the ‘Software’). OpGen hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Software solely as incorporated into, and used in connection with, the Products in accordance with the terms and conditions herein. All Software is the proprietary technology of OpGen. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and will notify OpGen promptly of any such unauthorized use. Customer will not disassemble, decompile or otherwise reverse engineer the Software and will not modify, copy, sell, rent, transfer, reproduce or distribute the Software. Customer will at all times comply with the terms and conditions applicable to any third party software provided with the Software. OpGen reserves all rights in the Software not expressly granted herein.
10. Disclaimers: EXCEPT AS EXPRESSLY SPECIFIED HEREIN, ALL PRODUCTS ARE PROVIDED ‘AS IS.’ OpGen DOES NOT WARRANT THAT PRODUCTS WILL BE COMPATIBLE WITH ANY CUSTOMER APPLICATION, RESULT IN ANY OUTCOME, OR OTHERWISE MEET CUSTOMER’S REQUIREMENTS. OpGen HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.
11. Liability for OpGen Intellectual Property: If any Product is subject to an injunction on account of the use of OpGen technology, OpGen will, in its sole discretion and as Customer’s sole remedy, either (i) obtain for Customer the right to continue using such Product, (ii) replace or modify such Product without substantially compromising its principal functions or (iii) refund to Customer the depreciated value of the Product(calculated as the price Customer paid amortized on a straight-line basis over a ninety (90) day period) upon the return or destruction of the allegedly infringing Product by Customer. OpGen will have no liability or obligation hereunder with respect to (l) any use not strictly in accord with the Standard Terms and Conditions, (2) copies, modifications, derivatives or combinations not created by OpGen, (3) products that, in whole or in part, comply with Customer’s requirements or use any Customer Material, (4) Customer’s continuing activity after being notified thereof or provided a substitute that would have avoided the alleged infringement or (5) any intellectual property right in which Customer or any of its affiliates has an interest. The foregoing states the entire liability of OpGen and Customer’s exclusive remedy with respect to any actual or alleged violation of intellectual property rights by any Product, any part thereof or by its use or operation.
12. Customer Indemnification: Customer agrees to defend, indemnify and hold harmless OpGen and its affiliates, directors, officers, employees, consultants, subcontractors and agents (each an ‘Indemnitee’) from and against all losses, liabilities, damages and expenses, including without limitation, reasonable attorneys’ and experts’ fees and costs (collectively, ‘Liabilities’), arising out of, relating to or resulting from (i) any claims, demands, actions or other proceedings by any third party, that the supply of Customer Material to OpGen and OpGen’s use of Customer Material in accordance with these Standard Terms and Conditions infringes a patent, copyright or trade secret of any third party; and (ii) from any claim relating to (a) any Customer Application or Customer Material, (b) Customer’s violation of any Applicable Law or (c) Customer’s negligence, misconduct or breach of any term of these Standard Terms and Conditions. Each Indemnitee will notify the Customer within a reasonable period of time in writing of any claim and cooperate in the defense or settlement of such claim at the reasonable request and expense of the Customer, although the Indemnitee may be represented by separate counsel at its expense.
13. Limited Liability: IN NO EVENT SHALL OpGen BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE. STRICT LIABILITY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, THE COST OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES OR LOSS OF BUSINESS REVENUES, PROFITS OR GOODWILL, EVEN IF ADVISED OF THEIR POSSIBILITY. IN NO EVENT WILL OpGen’S AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF THIS AGREEMENT OR ANY PRODUCT SOLD HEREUNDER EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE PRODUCT GIVING RISE TO SUCH DAMAGES, THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THE AGREEMENT AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY.
14. No Implied Rights: Nothing in these Terms and Conditions shall be deemed or construed as a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise. Moreover, nothing in these Terms and Conditions shall limit OpGen’s rights to enforce its patent or other intellectual property rights, including, without limitation, with regard to the use of any Product in violation of the restrictions stated herein. These Terms and Conditions do not provide any right to manufacture or sell any Product.
15. General: These Standard Terms and Conditions control over any conflicting or inconsistent terms in any related quotation. Terms in Customer’s purchase order, acknowledgment or other documentation that are in addition to or at variance with the terms of the Standard Terms and Conditions are specifically waived by Customer and rejected. No change, consent or waiver will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under the Standard Terms and Conditions at any time for any period will not be construed as a waiver. Unless otherwise stated herein, each right and remedy in the Standard Terms and Conditions is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision if the Standard Terms and Conditions is determined to be illegal or unenforceable, that provision will be removed to the minimum extent necessary so that the Standard Terms and Conditions otherwise remains in full force and enforceable. Exclusive jurisdiction and venue for any action arising under the Standard Terms and Conditions is in the federal and state courts located in Maryland, USA having jurisdiction over OpGen’s principal office, and both parties hereby consent to such jurisdiction and venue for this purpose. The Standard Terms and Conditions will be governed by and construed in accordance with the laws of the State of Maryland, USA without regard to the conflicts of laws provisions thereof. In the event of any conflict between US and foreign laws, rules and regulations, US laws, rules and regulations will govern. Any breach of the Standard Terms and Conditions will cause irreparable harm to OpGen for which money damages are not an adequate remedy, and OpGen will be entitled to an order for specific performance, injunction or similar equitable relief against any such breach or threatened breach without posting any bond. In no event will OpGen have any liability to Customer for any delay or nonperformance resulting in whole or in part, directly or indirectly, from any cause beyond OpGen’s reasonable control.