Terms and Conditions
These Purchase Order TERMS AND CONDITIONS (“T&Cs”) are between Precision NanoSystems Inc. (“Precision”) and the customer (“Customer”) to which Precision sent or provided a quote, proposal, statement of work, or the like (“Quote”) which attaches, incorporates, or includes these T&Cs.
Precision will provide its NanoAssemblr™ instruments and related equipment, supplies and consumables (“Products”) and/or custom research solutions, including custom laboratory reagents and/or custom laboratory services (“Work”) specified in the Quote to Customer, subject to the following terms and conditions.
SUPPLY OF PRODUCTS:
– Products must be used for research use only and must not be used in GMP-related manufacture. Nanoparticles or nanomedicines manufactured using the Products must be used for research use only and not in humans.
– Precision supplied Products that are instruments must only be used with Precision’s cartridges and microfluidic chips. Precision’s Products that are cartridges and microfluidic chips must only be used in Precision supplied instruments. Using non-Precision cartridges and microfluidic chips in a NanoAssemblr instrument voids the warranty.
– Precision will deliver Products to Customer in accordance with the delivery terms set out in Attachment 1 to these T&Cs.
– Precision will manufacture Products and/or have Products manufactured in accordance with all applicable laws, rules and regulations, and with the terms and requirements set forth in these T&Cs.
– Precision will pack Products in a manner consistent with normal industry practice that allows for the shipment of Products to Customer’s designated location without damage to Products, acting reasonably.
– In the event of a conflict in terms, the order of precedence will be as follows: (i) first, these T&Cs, and (ii) second, the Quote, unless explicitly stated otherwise in any such document.
SUPPLY OF WORK:
– Precision will perform the Work as an independent contractor, using methods, materials, equipment, and/or related intellectual property owned or controlled by it or its affiliates (“Precision Technology”) to provide Customer with data and/or materials produced by Precision as a direct result of the Work, as specified in the proposal or statement of work (“Deliverables”). Deliverables may include data or materials that result from the use of materials supplied by Customer (“Customer Materials”).
– Precision will make a good faith effort to start and complete all Work on time, and will notify Customer if substantial delays are likely. Precision will comply with all applicable laws and regulations to Work, and with any specific regulatory framework agreed in the proposal or statement of work.
– Unless otherwise expressly agreed in the proposal or statement of work, the Deliverables are not produced in accordance with United States Food and Drug Administration (FDA) good manufacturing practices or good laboratory practices or in accordance with any other similar laws or regulations in other jurisdictions.
– Precision may delegate performance of the Work, or portion thereof, to an affiliate or authorized subcontractor, provided that all Work will be performed in accordance with the proposal or statement of work.
– Unless expressly agreed in writing, all Work is provided on a nonexclusive basis, and Precision reserves all rights for Precision and its affiliates to provide third parties with deliverables that are identical or similar to Deliverables.
CUSTOMER MATERIALS AND DATA
– You will provide us with Customer Materials as specified in the proposal or statement of work, in compliance with applicable laws and regulations and in sufficient amounts, as well as relevant safety information and other characteristics of Customer Materials that we need to perform the Work, including without limitation any certification or documentation of Customer Materials we reasonably request of you.
– The Customer Materials, and all information about Customer Materials, whether provided by Customer or generated by Precision in the performance of Work (“Data”), shall be subject to the confidentiality and non-use requirements as stated below. Upon completion of the Work, we will maintain records of the Data for a period of no less than 1 year.
– Precision will use Customer Materials and Data only in accordance with the proposal or statement of work, and will not modify nor reverse engineer Customer Materials except as agreed therein. Unless otherwise specified in the proposal or statement of work or agreed in writing, any Customer Materials not consumed in the Work or required for additional Work will be destroyed after 6 months. Precision will not transfer Customer Materials, in whole or in part, to any third party, other than a subcontractor, without your prior written approval.
PROPRIETARY RIGHTS AND PRODUCT RESTRICTIONS:
– Nothing contained in these T&Cs will be construed as an assignment to Customer of any of Precision’s patent, copyright, trade secret, trademark or any other intellectual property rights (“Intellectual Property Rights”) in or to the Products, Precision Technology, Deliverables and Data. All Intellectual Property Rights in or to the Products, Precision Technology, Deliverables and Data are and will remain the sole and exclusive property of Precision and are reserved by Precision.
– Precision hereby grants to Customer a non-exclusive, non-transferable, and non-assignable license to use the Products, Deliverables and Data solely for the purposes of conducting Customer’s internal formulation activities relating to the research, development or manufacture of nanoparticles or nanomedicines, but not including any GMP-related manufacture, and Customer may use and share those nanoparticles or nanomedicines which are manufactured using the Products with its Affiliates or its/their bona fide third party collaborators for research and development purposes (the “Permitted Purpose”). For purposes hereof, “Affiliate” means any corporation or other entity that, as of the relevant time, controls, is controlled by, or is under common control with, Customer, and for purposes of this definition, “control” means ownership of: (i) at least fifty percent (50%) of the outstanding voting securities of such entity; or (ii) at least fifty percent (50%) of the decision-making authority of such entity. Customer guarantees the compliance by each of its Affiliates and collaborators with all of the terms and conditions of these T&Cs, and Customer will be liable for failure by its Affiliates or collaborators to comply with all of the terms and conditions of these T&Cs.
– Customer, will not, without Precision’s prior written consent, (i) use the Products or Deliverables for any purpose other than the Permitted Purpose; (ii) provide or make available the Products themselves to any third party person, firm, corporation, or other entity regardless of any affiliation or relationship with Customer (including any Affiliates or collaborators); (iii) reverse engineer, manufacture, or sell such Products; (iv) reverse engineer, manufacture, or sell any device incorporating such Products, or any process that accompanies Precision’s microfluidics technology; or (v) modify such Products or use such Products or Precision’s proprietary or confidential information as the basis for design or creation of any new device, or any process that accompanies Precision’s microfluidics technology.
– Customer will purchase Products and Work at the prices and on the payment terms set out in the Quote, or if not so set out, within thirty (30) days from Precision’s invoice date and any overdue amounts will be charged interest at 3% per month (equivalent to 36% per annum).
– Prices will exclude applicable sales and value added taxes. To the extent any such taxes are applicable and Precision has the legal obligation to collect such taxes, Precision will be entitled to add to the relevant invoice the amount of such taxes, and Customer will pay such amount unless Customer provides Precision with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold taxes on amounts payable to Precision under these T&Cs, it will pay to Precision such additional amount as may be necessary in order that the net amount received by Precision after such withholdings will not be less than the amount Precision would have been entitled to receive in the absence of any such withholdings.
– Included in the purchase price of Products, PNI warrants that systems will meet the relevant specifications and be free of defects in workmanship and materials under normal application, installation, operation, use and service conditions (“Warranty”)
– Systems are warranted for a period of 12 months any exception to this coverage will be noted on the quote
– The Warranty will commence at the date of invoicing of the system
– Systems are exclusively warranted for use with their respective, supplied counterpart(s) supplied by Precision NanoSystems Inc.
– The Warranty applies only to systems installed by an authorized PNI representative
PRODUCT EXTENDED WARRANTY:
– Extended warranty beyond the initial PNI Warranty may be purchased for up to a total of 4 years (“Extended Warranty”).
– Extended Warranty must be purchased at the time of system purchase.
– Extended Warranty includes a mandatory yearly maintenance service.
For Warranty or Extended Warranty PNI will, at its option, repair or replace the system at no charge to the customer, provided PNI is notified within the coverage period, and the system has not been misused.
PRODUCT SERVICE PLAN:
For systems that Extended Warranty is not purchased, customer may obtain post warranty coverage through purchase of a Service Contract (“Service Plan”)
Systems under Warranty or Extended Warranty or Service Plan
– A Service Plan may be purchased to further extend coverage
Systems not under Warranty and Extended Warranty or Service Plan
– A Service Plan may only be purchased after a full service, assessment and, if necessary, repair of the instrument by a PNI specialist (“Service Assessment”)
The cost of the Service Assessment is the responsibility of the customer.
The specific benefits of the Service Plan are defined by the type of service contract purchased.
For Service Plan, PNI will, at its option, repair or replace the system at no charge to the customer only when specified in the service agreement, provided PNI is notified within the coverage period, and the system has not been misused
– PNI will repair, with reasonable promptness, those instrument malfunctions which render the system inoperable. Each emergency call will include repair of the malfunctioning portion of the system plus a check of the entire system to ensure specified operation.
– PNI shall not be held responsible for any lost time, products or materials as a result of malfunctioning equipment, servicing or availability of parts.
– All work will be performed between our normal working hours 8:00a.m. and 5:00 p.m. Pacific Standard Time. Monday through Friday excluding holidays. Any service requested outside of our normal working hours will be available at the current overtime rates and subject to availability.
– PNI may require a completed Hazardous Material Declaration and Certificate of Decontamination, or transfer of an instrument to a suitable, safe and secure location reasonably determined by PNI, as a condition to servicing any instrument. Customer warrants that any instrument or component to be serviced will be fully decontaminated of radioactive, biological, toxic or other dangerous materials or substances prior to servicing so that the service technician will not be exposed to any such materials. Customer shall not assign PNI personnel to work in bio-safety level 3 or level 4 laboratories without prior written notice to PNI and PNI’s written consent.
PRODUCT EXCLUSIONS AND LIMITATIONS:
– Warranty, Extended Warranty and Service Contracts are non-transferable. Coverage may be void if the product is moved outside of the registered location of installation.
– Usage of the system under warranty in biological safety level containment facilities greater than BSL-2 may, at PNI’s discretion, void the stated warranty. Customer shall not assign PNI personnel to work in bio-safety level 3 or level 4 laboratories without prior written notice to PNI and PNI’s written consent for any service.
– Warranties, Extended Warranties, Service Contracts do not include consumable parts. Parts in contact with any liquid are considered wetted and may be deemed as consumable parts, including, but not limited to seals, filters, tubing, cartridges, fluid bottles, syringes, kit reagents.
– Repairs and services required as a result of misuse, improper use, instrument modification or unauthorized repair attempts during the Warranty, Extended Warranty or Service Contract will not be covered and will be billed at current rates for parts, labor and travel.
Examples excluded from coverage include, but are not limited to:
A) Neglect on the part of users to perform timely routine maintenance or troubleshooting and repairs as described in the instruction manuals for the instrument.
B) Flood, lightening, earthquake, tornado, hurricane or other natural or man-made disaster.
C) Physical abuse, misuse, electrical surge, power failure or sprinkler damage.
D) Modification, repair, service transfer to another location of the instrument made by the customer, customer’s employees, agents or an unauthorized contractor, or intrusive activity, including without limitation computer viruses, hackers or other unauthorized interactions with instrument or software that detrimentally affects normal operations
E) Damage resulting from the use of reagents other than those recommended for use by the manufacturer.
F) Damage caused by corrosion due to the environment.
G) Damage caused by improper or inadequate maintenance by the user.
H) Use in combination with software or products, not supplied or authorized by PNI.– Coverage for parts replaced under a Warranty, Extended Warranty or Service Contract expire with the related coverage of the system.– Repairs performed on instruments that are no longer covered by Warranty, Extended Warranty or Service Contract carry a 90 day warranty for labour and on the parts replaced
LIMITED WARRANTY FOR WORK:
– Precision’s sole warranty for the performance of Work is that the Work will be performed using due care in accordance with (a) the proposal or statement of work and (b) laws, regulations and generally prevailing industry standards applicable to such Work. We do not warrant or represent that the results of the Work will be acceptable to any regulatory agency to which they are presented or that they will advance your interests.
PNI may accept or reject at its discretion a purchase order for Service or a Service Plan. Unless otherwise expressly stated by PNI in writing or under the terms of the purchased Service Plan, the initial term of a Service Plan and this Agreement is one year, commencing on the date designated by PNI in its quotation or otherwise specified to customer. A Service Plan may be terminated by either party, upon at least thirty (30) days written notice to the other party. Termination will be effective thirty (30) days after the receipt of such notice, or at a later date if one is so specified in the notice (“Termination Date”). Termination cannot be made effective prior to thirty (30) days after notice is received, provided, however, that PNI may terminate a Service Plan immediately in the event that the instrument covered by the Service Plan is transferred to another location or another company. PNI will cease Service under this Agreement and underlying Service Plan on the Termination Date unless the customer specifies a separate, earlier date in writing (“Cessation Date”). In that event, PNI will cease Service under this Agreement and underlying Service Plan on such Cessation Date.
Return material authorization. Customer must obtain a return material authorization (“RMA”) from Precision NanoSystems prior to returning any Product. Precision NanoSystems’ issuance of an RMA will not be unreasonably withheld or delayed. A Product return will not be accepted unless accompanied by a valid RMA
LIMITATION OF REMEDIES:
The remedies set forth above are the sole and exclusive remedies for any defects or failures in Products, or for any breach of warranties by Precision NanoSystems, or if Customer is not satisfied with any Products for any reason.
INDEMNIFICATION; LIMITATION OF LIABILITY:
– Customer will defend, indemnify and hold harmless Precision, its officers, directors, employees, consultants and agents (collectively, the “Precision Indemnitees”) from and against all losses, damages, liabilities, expenses and costs, including reasonable legal expense and attorneys’ fees (“Losses”), to which any such Precision Indemnitee may become subject as a result of any claim, demand, action or other proceeding by any third party to the extent such Losses arise out of Customer’s use of the Products or nanoparticles or nanomedicines manufactured using the Products, except, in each case, to the extent such Losses result from the gross negligence or wilful misconduct of any Precision Indemnitee or the breach by Precision of these T&Cs.
– TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER PRECISION NOR ITS SUPPLIERS WILL BE LIABLE OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF SAVINGS, BUSINESS LOSSES, BUSINESS INTERRUPTION, WORK STOPPAGE, LOSS OF DATA, LOSS OF GOODWILL, AND ANY OF THE LIKE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PRECISION’S (INCLUDING ITS SUPPLIERS) CUMULATIVE LIABILITY TO CUSTOMER UNDER, ARISING OUT OF, OR IN ANY WAY RELATED TO THESE T&CS AND THE QUOTE, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID TO PRECISION UNDER THE QUOTE IN WHICH THE EVENT GIVING RISE TO THE LIABILITY OCCURRED. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
– These T&Cs and the Quote are subject to any separate confidentiality or non-disclosure agreement (“NDA”) entered into between Precision and Customer, and, for the purposes of these T&Cs, performance of these T&Cs and the Quote will be deemed to be part of the purpose of such NDA.
– Governing Law and Venue. These T&Cs are governed by and will be construed in accordance with the law of the Province of British Columbia and the federal laws of Canada applicable therein, excluding any conflict-of-laws or principles that would apply a different body of law. The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to these T&Cs or to the transactions contemplated by these T&Cs. Except with respect to a party seeking interlocutory, interim or equitable relief to preserve the status quo or prevent irreparable harm such as an injunction or specific performance (which may be brought before any court of competent jurisdiction), each party hereby consents to the exclusive jurisdiction of the courts sitting in the Province of British Columbia in any action on a claim arising in respect of these T&Cs or the transactions contemplated thereby.
– Force Majeure. Neither party will be responsible for any failure to perform hereunder due to unforeseen circumstances or due to causes beyond the non-performing party’s reasonable control. This Section does not apply to excuse a failure to make payments when due.
– Construction. These T&Cs (including all Quotes) set forth the entire understanding between the parties and supersede all prior agreements, proposals, representations, warranties and all other communications between the parties relating to the subject matter hereof. Other than as specifically provided in these T&Cs, there are no oral or written conditions, representations, warranties, undertakings or agreements between the parties. No modification to these T&Cs and no waiver of any provision of these T&Cs will be binding unless executed in writing by the parties. No waiver of any provision of these T&Cs will be construed as a waiver of any other provision hereof nor will such a waiver be construed as a continuing waiver. Each of the rights and remedies of the parties hereunder are separate, non exclusive, cumulative and without limitation of each other and the rights or remedies available under the law. If any clause or provision of these T&Cs is declared invalid or unenforceable, the remainder of these T&Cs will remain in full force and effect. Headings used in these T&Cs are for reference purposes only and will not be deemed to be a part of these T&Cs. These T&Cs will not be construed as creating a partnership, joint venture or agency relationship between the parties or any other form of legal association which would impose liability upon one party for any act or failure to act by the other party.
– Assignment. Neither party will assign any rights or obligations under these T&Cs or any Quote without the prior written consent of the other party and any attempted assignment in violation of the foregoing will be null and void, except that a party may assign these T&Cs (including all Quotes) without such consent to its successor or acquirer by way of merger, combination, acquisition or sale of all or substantially all of its assets. Subject to the restrictions on transfer set out herein, these T&Cs (including all Quotes) will enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
ATTACHMENT 1 – DELIVERY TERMS:
– Precision uses FedEx by default for most of its shipping. Customer may request alternative shipping methods or ship on Customer’s account.
– Customer is responsible for the cost of shipping, insurance, and any applicable duties and taxes.
– Actual shipping charges will be determined and added to the invoice at the time of shipping. Please email info@precision nano.com if Customer requires an exact shipping quote prior to shipping, and Precision will provide a quote based on Precision’s rates.
– All shipments will be delivered FCA (Incoterms) Precision’s warehouse in Canada without insurance. Customer may request insurance for a shipment by indicating this on the Purchase Order, in which case Precision will add the insurance cost to the invoice at the time of shipment. If not otherwise specified, the shipment is insured for $100 (the default provided by FedEx).
– Products will be deemed to be delivered upon the date the Products are released to the carrier (“Delivery Date”).
– Standard delivery terms: Ex Works.
– Title to Products (excluding any Intellectual Property Rights) and transfer of risk of loss and damage, care, custody and control will be transferred to Customer upon shipment from Precision’s facility (FOB Shipping Point).