OpGen, Inc. Product and Related Services 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 are sold with restrictions on the use of those products 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.
- Pricing and Purchase Orders: Prices are for Products only and are exclusive of shipping and handling, insurance, taxes, and other related charges. Customer shall report and pay any and all other charges, and hold OpGen harmless therefrom. Purchase orders for Products must be submitted in writing and executed by Customer. All purchase orders are subject to OpGen’s written acceptance. 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.
- Shipping, Delivery: Product will be shipped to Customer FOB. Destination and risk of loss or damage shall pass to Customer at such point and time, with shipping and handling charges paid by OpGen. Except if otherwise specified, OpGen shall be permitted to charge for freight. OpGen reserves the right to ship Products freight collect and select the means of transportation and routing. At its option, OpGen may insure full value of the Products or declare full value thereof to the carrier at the time of delivery and such freight and insurance costs shall be charged to the Customer. 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 be considered 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.
- Installation: If installation is required, installation of the instruments shall be deemed acceptable by Customer upon completion by OpGen of its applicable acceptance tests, determined and performed at OpGen’s sole discretion, and acceptance by Customer, but use of any Product by Customer for any purpose after delivery shall constitute acceptance. Reasonable cancellation charges shall be paid by Customer, and shall include all expenses incurred and commitments made by OpGen.
- Warranty: OpGen warrants, either through itself or its partners, the instruments to the original Customer for a period of one (1) year after date of installation against defects in material and workmanship and defect arising from failure to conform to OpGen’s specifications applicable on the date of installation, and OpGen agrees, either through itself or its partners, to correct, either by repair or replacement or, at its election, by replacement, any such defect found on examination to have occurred, under normal use and service, during such period provided OpGen is promptly notified in writing upon discovery of such defect. Disposables and replacement items with a normal life expectancy of less than one (1) year are excluded from this warranty. The warranty of OpGen set forth above and the obligations and liabilities of OpGen are exclusive and in lieu of all other remedies, warranties, guarantees or liabilities, express or implied, arising by law or otherwise, with respect to the Product delivered hereunder (including, without limitation, any obligation of OpGen with respect to merchantability, fitness for a particular purpose, non-infringement and incidental or consequential damages). This warranty shall not be extended except by written instrument signed by OpGen.
- 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.
- 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 that are applicable.
- Returns and Allowances. All sales are considered final. OpGen warrants that Product meets the specifications in the product literature or in this quotation. 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.
- 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.
- 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 any claims, demands, actions or other proceedings by any third party due to 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.
- Limited Liability: OpGen shall not be liable as to any defect arising from abuse of the Product, failure to operate and maintain the Product in accordance with the Operator’s Manual, operation of the Product by a person who has not been trained in its operation by OpGen or its designated provider, repair, service, alteration or modification of the Product by any person other than service personnel of OpGen or its designated provider, or modification, change or reuse of the disposables supplied by OpGen for use in the Product.
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.
- 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.
- 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.