These Terms and Conditions (“Terms") governing the sale of products and related services ("Products”) from BioPorto Diagnostics A/S ("BIOPORTO") and Buyer. Any deviating conditions or reservations by Buyer shall only be binding if confirmed in writing by BIOPORTO. Conditions are also applicable in individual cases where Terms are not attached, but which Buyer has been made aware of the Terms.
1. Conclusion of Contract
1.1. An agreement of purchase and sale of Products ("Agreement") is effective when approved by BIOPORTO by e-mail or phone ("Order Acceptance ") within five (5) business days and / or after receipt of an invoice to Buyer.
1.2. Shipment will be made within 30 (thirty) business days after providing the Order Acceptance or the date of the invoice. In case of delayed delivery, Buyer shall not be entitled to compensation or additional benefits. Buyer has no right to withdraw from the agreement.
1.3. If BIOPORTO cannot deliver on time or do not deliver because of events at BIOPORTO or its suppliers that are outside BIOPORTO's control (force majeure), BIOPORTO has the right to withdraw from the Agreement in whole or in part without any liability. BIOPORTO reserves the right to make partial deliveries. BIOPORTO will refund the purchase price related to the non –delivery after reception of Buyers bank account coordinates.
2. Transfer of title and risk passes
2.1. Title and risk pass to buyer in accordance with Incoterms 2010: FCA (Copenhagen)
2.2. Notwithstanding the above, the Products remain the property of BIOPORTO until BIOPORTO has received full payment from the Buyer.
3. Review and acceptance of deliverables
3.1. Shipping Damages: Buyer shall upon receipt immediately undertake a thorough review of the package delivered and shall inform BIOPORTO in writing of any defects due to transport of the Product within three (3) business days.
Quality problems: Buyer must notify BIOPORTO of any quality problems promptly and in any event within thirty (30) business days of receipt.
3.2. In the event of deficiencies or other discrepancies, BIOPORTO will at its discretion, either replace the defective or nonconforming Product(s) or reimburse Buyer an amount equivalent to the purchase price of the defective or inconsistent Products. Buyer shall have no other claim. Any defective Product shall, at BIOPORT’s option and expense, be either returned to BIOPORTO or destroyed.
3.3. No returns can be accepted without prior written approval of BIOPORTO. No return of custom manufactured Products will be authorized if the Product meets the specifications agreed upon prior to shipment.
4. Use of Products
4.1. Products are for Research Use Only or Diagnostic use, dependent of labeling and territory. None of the Products are intended for human in vivo use or Therapy.
4.2. Products are only intended for professional use, including laboratory and healthcare use.
5. Recall of Products
5.1. BIOPORTO may at any time withdraw Products with reasonable justification. If BIOPORTO has caused the recall, BIOPORTO will at its discretion, either replace the Products or refund the purchase price. This clause sets buyer's exclusive and total power in case of a recall.
5.2. Buyer shall obtain all necessary licenses and exchange control approvals and other regulatory approvals for import and use of the Products. Buyer's failure to do so shall not relieve Buyer of any obligations under these Terms.
6. Product Specifications & Alternate Rights
6.1. As required, available application notes or/and working procedures for Products are available on the BIOPORTOS’s website (www.bioporto.com).
6.2. BIOPORTO reserves the right to change product specification (e.g. buffer system) as seen fit to maximize product quality.
7. Limited Warranty and Limitation of Liability
7.1. BIOPORTO warrants that the Products are manufactured in accordance with general industry standards and BIOPORTO's written specifications, including but not limited to specifications that describe the Products, and instructions for use of the Products ("warranty").
7.2. This warranty is the only warranty given with respect to the Products. BIOPORTO makes no express warranty and, to the fullest extent permitted by applicable law, excludes and disclaims any and all implied warranties of whatsoever kind under any system of law, trade practice or otherwise including (without exception) implied warranties as to the merchantability of the Products or their suitability or fitness for any particular purpose or use.
7.3. Claims under the guarantee is conditional upon Buyer's disclosure of proof of actual losses, BIOPORTO's failure to comply with warranty and documentation that Buyer has stored , transported and used Products in compliance with all BIOPORTO specifications and other written and oral instructions and all relevant laws, rules and guidelines as well as general industry standards.
7.4. Notwithstanding the foregoing, BIOPORTO is not responsible for any loss or damage arising out of or in connection with the adverse effects caused by Products, which can reasonably be considered acceptable under the circumstances, whether the side effect was known or could have been anticipated including but not limited to side effects that are warned about in BIOPORTO's written information. Buyer disclaims any such claim.
7.5. BIOPORTO is not under any circumstances, for any reason, liable for any indirect or consequential loss / damage, as well as "punitive damages" including but not limited to consequential loss and loss of revenue and legal fees, regardless of whether the loss or damage may be suffered by the Buyer. It is emphasized that this limitation of liability applies regardless of the basis on which the loss or damage is based, including but not limited to delays, defects, product liability, professional liability , contract, warranty, and tort.
7.6. The limitations of the above apply to any breach or liability by BIOPORTO; including but not limited to defects, product liability, intellectual property rights etc., and that the remedies therein are exclusive and exhaustive to the extent permitted by applicable law.
7.7. In no event shall BIOPORTO’s liability exceed the price actually paid to BIOPORTO for a Product.
7.8. To the extent permitted by law, BIOPORTO is for any reason not responsible for any damage caused to Buyer or any third party or any losses in connection therewith.
7.9. BIOPORTO shall not in any way be responsible for the acts or defaults of Buyer, its employees or representatives. The relationship between the parties is that of Buyer and seller and nothing contained herein shall be construed as constituting Buyer an agent or representative of BIOPORTO, or as giving it any authority to incur any obligation whatsoever on behalf of BIOPORTO.
7.10. Buyer shall indemnify BIOPORTO, its affiliates and their respective officers from any loss or claim arising or occurring as a result of (i) personal injury or property damage proximately caused by Buyer´s gross negligence or misconduct, or any modification by Buyer to a Product (ii) other personal injury or property damage caused by Buyer´s gross negligence or misconduct, (iii) any violation of applicable law, rule or regulation by Buyer.
8. Governing law and jurisdiction
8.1. These Terms shall be interpreted in accordance with the laws of Denmark and shall be determined by the competent courts in Copenhagen and the parties hereby consent to exclusive jurisdiction in such courts.
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