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1.1 “Applicable Law” means all applicable federal, state, and international laws, statutes, regulations, and ordinances, as such may be amended, revised, restated, or replaced from time to time.
1.2 “Deliver Location” means that location specified in the Request for Services for delivery of Materials by EXCELLOS to Customer.
1.3 “Materials” means the specific blood and related products, as specified in any particular the Request for Services, that will be prepared and provided by EXCELLOS to Customer.
1.4 “Other Services” means those additional services described under any particular Request for Services that will be rendered by EXCELLOS to Customer.
1.5 “Request for Services” means the written request for Services for Materials or Other Services, via electronic transmission or otherwise, submitted by Customer to EXCELLOS.
1.6 “Sales Quotation” means that written confirmation of an offer for the sale of certain Materials and/or Other Services subject to these Terms and Conditions setting forth a detailed description of all Materials and/or Other Services to be provided to Customer and all rates, quantities and pricing terms associated with the same in response to Customer’s Request for Services.
1.7 “Terms and Conditions” means these general terms and conditions, and any and all Request for Services and accepted Sales Quotation, which shall be deemed a binding purchase order and incorporated herein by reference
2.1 Customer’s Assent to Terms. Customer’s Request for Services are governed by these Terms and Conditions. As such, Customer understands and agrees that the sale of any Materials or Other Services and the receipt, acceptance or use of any of the Materials or Other Services or is expressly conditioned on Customer’s assent to these Terms and Conditions. No Customer form or other communication shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification of these Terms and Conditions.
2.2 Performance. Upon receipt of a Request for Services from Customer, EXCELLOS shall prepare and generate a Sales Quotation. Customer’s acceptance of any Sales Quotation and/or the Materials and/or Other Services rendered by EXCELLOS shall be deemed Customer’s acceptance to these Terms and Conditions.
2.3.1 Location. The Materials shall be delivered by EXCELLOS to the Delivery Location, unless otherwise agreed in writing by EXCELLOS and Customer. If no Delivery Location is specified in the Request for Services and/or accepted Sales Quotation, then the Delivery Location is EXCELLOS’s location.
2.3.2 Shipping Method. Unless otherwise specifically agreed to by EXCELLOS and Customer, EXCELLOS will use its standard methods for shipping and packaging. Same day delivery and customer pickup is available with prior arrangements with EXCELLOS.
2.3.3 Receipt. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Materials at the Delivery Location. Unless otherwise specifically agreed to by EXCELLOS and Customer, title and risk of loss shall pass to Customer upon delivery of the Materials to the Delivery Location (DAP incoterms), except where Customer requests, and EXCELLOS agrees to, use of its own courier or is otherwise paying the courier for the shipping (in which case title and risk of loss passes to Customer upon pickup of the Materials from EXCELLOS’s office (EXW Incoterms). Delivery times are estimates and performed by third party couriers, therefore they are not guaranteeded by EXCELLOS. Excellos is not responsible for delivery delays or product degradation resulting from delivery delays attributed to carrier.
2.3.4 Acceptance. Customer shall inspect all Materials upon receipt and notify EXCELLOS in writing of any claim of damage, defect, or shortage within thirty (30) days for cryopreserved Materials and forty-eight (48) hours for fresh Materials. If a notification is not received during the outlined timeframe, all Materials and/or Other Services will be deemed accepted.
2.3.5 Partial Shipment. Unless otherwise specifically provided in the accepted Sales Quotation, EXCELLOS may, in its sole discretion, without liability or penalty, make partial shipments of Materials to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of accepted Sales Quotation.
2.3.6 Lease of LN2 Dewars. Excellos will lease an LN2 dewar on EXCELLOS’ Cryoport account if requested by Customer. The LN2 dewar and associated accessories must be promptly return to Cryoport using the prepaid shipping label. Customer may not sublease the Cryoport shipper to complete any additional shipments or for any other use. In the event that the shipper is not returned within the lease period, Cryoport will assess a late fee, which will be imposed on and paid by Customer. In the event the shipper and/or accessories are not returned to Cryoport within forty-five (45) calendar days following receipt, the equipment shall be deemed lost and Customer shall be liable for the replacement cost.
3.1 Payment. Customer shall pay EXCELLOS in United States currency in the United States all fees in the amounts and on the dates specified in any Sales Quotation accepted by Customer. If no due date is specified on the accepted Sales Quotation, then payment shall be due within thirty (30) calendar days of invoice from EXCELLOS. Further, Customer understands and agrees that all fees paid pursuant to any particular accepted Sales Quotation is non-refundable.
3.1.1 Shipping Fees. Unless otherwise specifically provided in the accepted Sales Quotation, Customer shall pay for all packing, shipping, and transportation costs to deliver the Materials to the Delivery Location.
3.1.2 Adjustments. EXCELLOS reserves the right to increase pricing or fees upon thirty (30) calendar days prior notice to Customer.
3.1.3 Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, EXCELLOS’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
3.1.4 Late Payment. Any payment not received by the due date shall bear interest at the lesser of the rate of 1.5% per month or the maximum permitted by law, calculated daily and compounded monthly. The accrual of such interest shall not affect any of the rights or remedies of EXCELLOS under these Terms and Conditions. In the event that payment due to EXCELLOS is collected at law or through an attorney-at-law, or under advice therefrom, or through a collection agency, Customer agrees to pay all costs of collection, including, without limitation, all court costs and reasonable attorneys’ fees. In addition to all other remedies available under these Terms and Conditions or at law (which EXCELLOS does not waive by the exercise of any rights hereunder), EXCELLOS shall be entitled to suspend the provision of any further Materials or Other Services if Customer fails to pay any amounts when due.
4.1 Authority. Each Party represents and warrants to the other Party that it has full authority to enter into these Terms and Conditions and each accepted Sales Quotation that it executes.
4.2 Compliance with Law. Each Party represents and warrants to the other Party that it will comply with Applicable Law while fulfilling its obligations under these Terms and Conditions. Each Party represents and warrants that it will obtain and maintain any state or federal license(s) and approvals necessary to meet its obligations under these Terms and Conditions. Each Party will also comply with any accrediting or certifying body or industry standards applicable to such Party in connection with these Terms and Conditions including the activities in any accepted Sales Quotation.
4.2.1 Research Use Only. EXCELLOS agrees to sell Materials and/or Other Services hereunder for use in research only. Clinical use, development of the Material or third party distribution of the Material for clinical use or otherwise is not authorized. In furtherance of Customer’s understanding, represention and warranty as to the research use limitation, Customer further warrants and represents that any Material provided by EXCELLOS hereunder will not be used in any manner on human subjects and understands that Materials should be considered potentially infectious for diseases.
4.3 EXCELLOS’s Disclaimer of Warranties. EXCELLOS IS PROVIDING THE MATERIALS AND ANY OTHER SERVICES “AS IS”. CUSTOMER UNDERSTANDS THAT ANY MATERIALS DELIVERED TO CUSTOMER PURSUANT TO THESE TERMS AND CONDITIONS MAY HAVE UNKNOWN CHARACTERISTICS, MAY CARRY INFECTIOUS AGENTS, MAY HAVE HAZARDOUS PROPERTIES AND SHALL BE CONSIDERED POTENTIALLY INFECTIOUS FOR DISEASES. DUE TO THE NATURE OF THE MATERIALS, EXCELLOS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY: (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE, PATENTABILITY, OR NON-INFRINGEMENT, (d) WARRANTY ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, TRADE USAGE, TRADE PRACTICE, OR OTHERWISE, (e) WARRANTY AS TO THE PURITY, SAFETY, POTENCY, OR ACTIVITY OF THE MATERIALS, AND (f) WARRANTY OF ACCURACY OF ANY TEST RESULTS.
4.4 Third Party Products and Services. Products or materials manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Materials. In addition, a third party may perform services for EXCELLOS on the Materials (e.g., testing) (“Third Party Services”). For the avoidance of doubt, EXCELLOS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT OR THIRD PARTY SERVICES, AND EXCELLOS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY: (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE, PATENTABILITY, OR NON-INFRINGEMENT, (d) WARRANTY ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, TRADE PRACTICE, OR OTHERWISE, (e) WARRANTY AS TO THE PURITY, SAFETY, POTENCY, OR ACTIVITY OF THE MATERIALS, AND (f) WARRANTY OF ACCURACY OF ANY TEST RESULTS.
5.1 Scope. Customer will, at its sole expense, defend, indemnify, and hold harmless EXCELLOS and its directors, officers, employees, attorneys, subcontractors, and agents, (collectively, “Indemnitees”), from and against such portion of any and all third-party claims, actions, causes of action, demands, suits, or proceedings and any resulting liabilities, losses, fines, judgments, damages, expenses, and/or costs (including attorneys’ fees) (collectively, the “Claims”) to the extent such Claims result from or are caused by: (a) the negligence or willful misconduct of Customer or any of Customer’s directors, officers, customers, employees, agents, or subcontractors; (b) Customer’s receipt, disclosure, use, or storage of the Materials, or (c) Customer’s breach of these Terms and Conditions. EXCELLOS shall be responsible for its own negligence or willful misconduct in the performance of these Terms and Conditions to the extent permitted by Applicable Law.
6.1 No laboratory tests or other procedures are presently available which can ensure that blood AND/OR BLOOD components are free from all agents, including but not limited to viruses and retroviruses, which may cause disease or illness. Customer understands that the Materials may have hazardous properties and may carry transmissible infectious agents (e.g., HIV, hepatitis b, and hepatitis c), WHETHER OR NOT THEY HAVE BEEN SUBJECT TO INFECTIOUS DISEASE MARKER SCREENING TESTINGS (E.G., ABO, RH, ANTIBODIES, HIV, HBV, HCV, HTLV, WNV, CHAGAS DISEASE, SYPHILIS, ETC). Except to the extent prohibited by law, Customer assumes all risks and responsibility in connection with THE handling, storage, disposal, internal transfer, and use of the Materials, and THE handling, storage, disposal, internal transfer, and use of ANY MODIFICATIONS TO the Materials. Customer shall take appropriate safety and handling precautions to minimize health or environmental risk to all individuals who use or come in contact with the Materials (e.g., universal precautions for the prevention of transmission of HIV and other blood borne pathogens), AND WILL INFORM AND TRAIN INDIVIDUALS WHO HANDLE THE MATERIAL OF THE RISKS INVOLVED. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER HEREBY ASSUMES ALL LIABILITY FOR LOSS, LIABILITY, DAMAGE, OR EXPENSE THAT MAY ARISE FROM CUSTOMER’S RECEIPT, USE, STORAGE, TRANSFER, PROCESSING, OR DISPOSAL OF THE MATERIALS. IN NO EVENT WILL EXCELLOS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, PROFITS, REVENUE, GOODWILL, MATERIALS, DATA, SERVICES, OR ANY TEST RESULTS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER ARISING FROM THESE TERMS AND CONDITIONS (INCLUDING BREACH OF THESE TERMS AND CONDITIONS), WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER OR NOT SUCH LOSS OR DAMAGES WERE FORESEEABLE AND WHETHER OR NOT EXCELLOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY FOR ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCELLOS’S TOTAL CUMULATIVE AGGREGATE LIABILITY UNDER THESE TERMS AND CONDITIONS, WHETHER IN CONTRACT (INCLUDING BREACH OF THESE TERMS AND CONDITIONS), WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE EXCELLOS SERVICES, MATERIALS, OR THESE TERMS AND CONDITIONS, SHALL NOT EXCEED TWO TIMES THE TOTAL OF ALL AMOUNTS PAID TO IT BY CUSTOMER UNDER THESE TERMS AND CONDITIONS DURING THE PRECEDING TWELVE (12) MONTH PERIOD, OR $10,000.00, WHICHEVER IS LESS. THIS LIMITATION OF LIABILITY REFLECTS AN ALLOCATION OF RISK BETWEEN EXCELLOS AND CUSTOMER IN VIEW OF THE FEES CHARGED CUSTOMER BY EXCELLOS. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF (I) THE TERMINATION OR EXPIRATION OF THESE TERMS AND CONDITIONS, OR (II) THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
7.1 Each Party will obtain and maintain in force and effect from the date of accepted Sales Quotation, and for a period of at least two (2) years thereafter, insurance of the types and in amounts generally accepted in the industry and sufficient to cover its obligations hereunder, including but not limited to any indemnification obligations. Each Party shall, at a minimum, maintain comprehensive general liability coverage of at least one million dollars ($1,000,000.00) per occurrence and three million dollars ($3,000,000.00) in the aggregate. Each Party will provide certificates of insurance to the other Party upon reasonable request.
8.1 Term. These Terms and Conditions shall be in full force and effect during any time in which either Party is performing hereunder.
8.2 Termination With Cause. Either Party may terminate a particular accepted Sales Quotation for cause if the other Party has materially breached these Terms and Conditions and has not cured such breach to the reasonable satisfaction of the other Party within fifteen (15) days of receiving the written notice from the non-breaching Party detailing the breach.
8.3 Without Cause. Either Party may terminate a particular accepted Sales Quotation without cause upon thirty (30) days’ written notice to the other Party or by mutual agreement of the Parties.
8.4 Upon Termination. Upon termination of a particular accepted Sales Quotation, Customer will pay and reimburse EXCELLOS for: (a) any amounts that have accrued under any accepted Sales Quotation, pursuant to these Terms and Conditions, as of the date of termination of the accepted Sales Quotation(s), and (b) all expenses falling due for payment after the date of termination of the accepted Sales Quotation(s), which arise from commitments reasonably and necessarily incurred by EXCELLOS for the performance its obligations under the accepted Sales Quotation(s) prior to the date of termination or expiration of these Terms and Conditions or termination of a accepted Sales Quotation, including non-cancelable obligations.
9.1 Governing Law and Venue. All matters arising out of or relating to these Terms and Conditions are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or relating to these Terms and Conditions shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of San Diego and County of San Diego, and each Party irrevocably consents and submits to the exclusive jurisdiction and venue of such courts in any such suit, action, or proceeding.
9.2 Independent Contractors. Each Party is an independent contractor in relation to the other Party for these Terms and Conditions and each Party is solely responsible for its employees and other agents to the exclusion of the other Party.
9.3 No Third-Party Beneficiaries. Nothing contained in these Terms and Conditions shall be construed to create any rights or benefits in a third party.
9.4 Assignment. Neither Party may assign, transfer, delegate, or pledge their obligations incurred or imposed under these Terms and Conditions.
9.5 Severability. If any of the provisions these Terms and Conditions is determined by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of these Terms and Conditions shall remain in full force and effect.
9.6 Force Majeure. If either Party shall be delayed or hindered in, or prevented from, the performance of any act required hereunder for any reason beyond such Party’s direct control, including but not limited to, strike, lockouts, labor troubles, governmental or judicial actions or orders, riots, insurrections, war, terrorism, acts of God, natural disasters, inclement weather, earthquake, epidemics, fire, embargoes, pandemics, diseases, delay or disruption of shipment or delivery, trespass or interference of third parties, failures or interruptions of communications facilities or equipment of third parties, or other reason beyond the Party’s control (a “Force Majeure Event”), then such Party’s performance shall be excused for the period of the Force Majeure Event.
9.7 Survival. The following provisions shall survive the termination or experiation of these Terms and Conditions: Receipt (Section 2.3.3), Representations and Warranties (Section 4), Indemnification (Section 5), Assumption of Risk and Limitation of Liability (Section 6), Insurance (Section 7), and Miscellaneous (Section 9).