Standard Terms & Conditions of Sale
Scope. These standard terms and conditions of sale apply in addition to any restrictions on the use of our Products (as defined herein), if any, as set forth in our quotation, labels, manuals and other product information (collectively, the “Terms”), and comprise the entire agreement between OpGen or any of its affiliates, as applicable, on the one hand (together ”OpGen”) and the customer or purchaser, on the other hand (the “Customer”). By purchasing any Products from us, Customer agrees to accept and be bound by these Terms and to comply with all restrictions and limitations set forth herein. The term ‘Product(s)’ includes without limitation, consumables, instruments, software, documentation and related accessories, as well as related services.
- Payment Terms. All prices are firm unless otherwise agreed to in writing. Payment terms shall be net 30 days from the date of invoice. OpGen reserves the right to require other or additional payment terms, such as cash on delivery, payment in advance or delivery of a deposit, if Customer’s account is overdue for a period of more than sixty (60) days or if it has an unsatisfactory credit or payment record. OpGen may also refuse to sell to Customer until overdue accounts are paid in full. Customer is responsible for all applicable taxes, customs, duties and fees imposed upon this transaction by any federal, state or local governmental authority, unless Customer provides OpGen appropriate evidence of exemption. OpGen reserves the right to increase any pricing or fee by up to five percent (5%) on January 1st of each year. Payments past due shall bear interest at the rate of eighteen percent (18%) per annum or the maximum rate permitted by law, whichever is less.
- Purchase Orders. Customer shall submit p urchase orders for Products in writing or by e-mail, specifying: (a) Products ordered; (b) the quantity desired; (c) the desired shipping or delivery instructions; and (d) invoice information. Purchase orders are always subject to OpGen’s acceptance. Any revision to or cancellation by Customer of an already accepted purchase order will be subject to OpGen’s written prior approval, and may be subject to a revision or cancellation fee. Unless otherwise agreed in writing, any terms included or submitted with any purchase order are hereby rejected and will not apply to any purchase of Products from OpGen.
- Delivery, Inspection, Title. OpGen shall make reasonable efforts to ship the Products or provide services in accordance with mutually agreed upon delivery dates. However, such dates are always non-binding and OpGen shall not be liable for any delay. OpGen may make partial shipments. All shipment, handling and insurance costs shall be paid by Customer and if prepaid by OpGen, shall be reimbursed to OpGen. Unless agreed otherwise delivery terms shall be FOB shipping point (Incoterms 2020) at which point in time the risk of loss shall pass to Customer. Unless Products are fully paid by Customer, OpGen shall retain title to the Products. Title in software incorporated within or forming part of Product shall in all cases remain exclusively with OpGen or our licensors own and shall solely be licensed only to Customer (see Section 4, License). If requested by OpGen, Customer shall deliver to OpGen, in form and substance satisfactory to OpGen and duly executed as required by OpGen, financing statements and other security interest perfection documentation suitable for filing under the Uniform Commercial Code (‘UCC’) in all jurisdictions as may be necessary, or in OpGen’s opinion, desirable, in order to establish, perfect, preserve, and protect OpGen’s security interest as a legal, valid, and enforceable security interest, and all documents of title, in cases in which possession thereof is required for the perfection of OpGen’s security interest. Customer agrees to pay all costs of perfection of an actual security interest. Customer shall be responsible for immediate inspection of all Products delivered or installed. If Customer does not provide written notice of rejection within ten (10) working days of delivery or installation, the Products shall be deemed to have been accepted. OpGen, in its sole discretion, shall replace or remedy timely rejected Products. Customer shall maintain the Products in proper working order. Unless purchased, Customer shall return the Products to OpGen upon expiration or prior termination of this Agreement in proper working condition, ordinary wear and normal use excepted. Customer shall at all times be responsible for any damage or loss to the Products.
- OpGen retains all proprietary rights in and to all designs and other technology and information pertaining to the Products. The Customer is granted a limited, non-exclusive, non-sublicensable, non-transferable license to use the software loaded on the Products as delivered to the Customer or that is otherwise provided to the Customer solely for Customer’s internal use. The Customer shall not modify, alter, copy, create derivative works, decompile, disassemble, translate or reverse engineer such software, or attempt to, nor have a third person attempt to do any of the foregoing.
- Warranty and Remedy. OpGen warrants that each Product sold or provided to the Customer shall perform in material conformity with its Product specifications (per the package insert or user manual, as applicable) for: (i) instruments, one (1) year from the date of installation; and (ii) consumables the earlier of, sixty (60) days from the date of shipment, or relevant specified Product shelf life date, expiration or “use by” date. OpGen reserves the right to change the specifications of its Products at any time without notice. Customer’s sole remedy under OpGen’s warranty shall at OpGen’s discretion be limited to either: (i) repair or replacement of the Product or component which failed to conform to the warranty; or (ii) refund to the Customer the purchase price paid by the Customer for such Product. OpGen reserves the right, in its sole discretion, to exchange, upgrade, or substitute Products provided to Customer under a rental agreement. Returns of non-defective Products are subject to a restocking charge. The Customer acknowledges that the sole remedy for a defective consumable is to obtain a free replacement consumable 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. The warranties provided in this Agreement shall be void if the Product should be improperly used, stored or handled, damaged or subjected to abuse or neglect, or modified or altered where the modification or alteration was not provided by or expressly authorized by OpGen. In the event of a claim that a Product or Customer’s use thereof infringes any patent or violates any proprietary right of a third party, and Customer’s use is enjoined, OpGen shall use commercially reasonable efforts to: (i) procure for Customer the right to continue using the Product; or (ii) modify or replace the Product so as to render it non-infringing while remaining functionally equivalent to the original Product, at no additional charge to Customer. If none of these alternatives appear to be reasonably feasible, then Customer may terminate this Agreement with respect to the affected Product and any specific volume commitment schedules shall be reduced thereby. The foregoing obligations of OpGen do not apply to any claim or loss to the extent it results from: (i) any modification or alteration to the Product where the modification or alteration was not provided by or expressly authorized by OpGen; (ii) use of the Product in a way not provided for or described in the applicable documentation; (iii) use of the Product in combination with another product not supplied or authorized by OpGen which causes the Product to become infringing. Customer shall indemnify, defend and hold harmless OpGen from and against any and all claims and losses to the extent such claims and losses are excluded from OpGen’s obligations under this Section 5. OpGen’s obligations hereunder are conditioned upon Customer promptly notifying OpGen in reasonable detail of any claim or loss. This Section 5 states Customer’s exclusive remedy with respect to any claim or loss for breach of warranty or infringement. ALL PRODUCTS ARE PROVIDED ‘AS IS’. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, OPGEN DOES NOT MAKE ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THOSE OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE PRODUCTS WILL BE ERROR FREE.
- IN NO EVENT SHALL OPGEN BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS, SPECIAL, COLLATERAL INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, SUSTAINED BY CUSTOMER RELATED TO THE SALE, PERFORMANCE OR USE OF THE PORDUCTS OR SERVICES PROVIDED OR FOR ANY AMOUNTS IN EXCESS OF THE FEES PAID BY CUSTOMER UNDER THESE TERMS, 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 OBLIGATION ARISING OUT OF PROVIDING ANY PRODUCT HEREUNDER EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE PRODUCT GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY.
- Any of the following events or conditions constitute a default by Customer under this Terms: (a) the failure of Customer to fully comply with and perform any and all terms and conditions including to make payments when due, which failure remains uncured for a period of thirty (30) days after written notice thereof; (b) the making of assignment for the benefit of creditors by Customer; or (c) the institution of bankruptcy, reorganization, liquidation, or receivership proceedings by or against Customer or impairment of the credit of Customer. Upon the occurrence of any such default of Customer, OpGen in its sole discretion shall have the right to exercise any one or more of the following remedies: (i) to terminate these Terms and any pending order or purchase hereunder; (ii) to declare and have the remaining unpaid balance for Products and volume commitments, and all other charges, taxes and assessments otherwise owing become due; (iii) adjust the term, prices or volume commitment; (iv) with or without notice, demand or legal process, to retake possession of the Products (and Customer authorizes and empowers OpGen to enter upon the premises wherever Products may be found); or (v) to pursue any other remedy available to OpGen at law or in equity. Without limitation, OpGen shall have all of the rights and remedies of a secured party under the UCC. Customer agrees to pay all costs of a potential collection, including without limitation, court costs, reasonable attorneys’ fees, and fees for repossession, repair, storage and (re-)sale of the Products.
- Each party agrees that it shall keep in confidence all information and documentation disclosed by the other party which relates to any confidential information or trade secrets, including but not limited to, proprietary processes of manufacture, know-how, methods of carrying on business including strategic and financial information of the parties, the terms of any agreement between them, or information which is designated by a party as confidential (“Confidential Information”) and that it shall not directly or indirectly use, copy or disclose to any third party any Confidential Information it receives from the other party, except that access shall be permitted to an employee, attorney, auditor or contractor on a need-to-know basis and who are bound by confidentiality obligations at least as stringent as those contained herein. Confidential Information shall not include any information which is: (i) known by the receiving party at the time of disclosure by the other party, free of any obligation to keep it confidential; (ii) publicly available or hereafter becomes publicly available without the receiving party violating any obligations hereof; or (iii) rightfully obtained from a third party without obligation to keep secret and who has the right to disclose such information; or (iv) independently developed by the receiving party. Onus of proof for (i) through (iv) aforementioned in this section lies with the receiving party.
- Compliance with Laws; Restrictions on Product Use. Both parties shall comply with all applicable laws, rules and regulations of all governmental and regulatory entities, including, but not limited to, fraud and anti-kickback laws, and Medicare and Medicaid regulations. Products labeled IVD are intended for in vitro diagnostic use in accordance with the label claims stated in the package insert accompanying the Product. Products labeled Research Use Only (RUO) are intended for research purposes only and are not for use in or with any diagnostic or clinical procedure, and shall not be used in or with any diagnostic or therapeutic procedure. Customer warrants that it shall not use RUO Products for diagnostic or clinical purposes and shall indemnify, defend and hold harmless OpGen from and against any and all claims and losses to the extent such claims and losses arise from a breach of this obligation. Our Products are for Customer’ use only and not for resale. Any resale of Products requires OpGen’s prior written consent. These restrictions do not prohibit the Customer from using the Products in providing commercial services to others. Reverse engineering of any of our Products is explicitly prohibited.
- Governing Law. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Delaware, excluding choice of law provisions. Customer consents to the jurisdiction of and expressly agrees that any disputes arising in connection with these Terms and any purchase hereunder may be brought in the state and federal courts located in the State of Delaware. Customer waives any claims that such courts would be an inconvenient forum. THE PARTIES HEREBY AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING HEREUNDER.
- Any conflicting, supplementary or inconsistent terms of Customer shall only become part of these Terms if and to the extent that OpGen has expressly agreed to such terms in writing. This requirement of consent shall apply in all cases, including, but not limited to, if OpGen unconditionally performs a delivery to Customer despite knowledge of Customer’s terms and conditions. The failure of either party to enforce its rights under the Terms at any time for any period shall not be construed as a waiver of such party’s rights hereunder in connection with such failure or any subsequent matters. If any provision herein should be determined illegal or unenforceable, that provision shall be removed to the minimum extent necessary so that the Terms otherwise remain in full force and enforceable. Any breach of the Terms shall cause irreparable harm to OpGen for which money damages are not an adequate remedy, and OpGen shall be entitled to seek specific performance, injunction or similar equitable relief against any such breach or threatened breach without posting any bond. OpGen reserves the right to amend these Terms at any time. Customer may not assign or transfer its rights or delegate its obligations hereunder without the prior written consent of OpGen. OpGen shall not be responsible or have any liability for any failure to perform as a result of any act or event outside of our reasonable control (i.e., an event of force majeure), including, without limitation, any floods, fires, earthquakes, natural disaster, acts of God, war, terrorism, epidemics, pandemics, acts of governmental entities, strikes or labor disputes.