1.1. “Agreement” means the relevant agreement with the Customer which shall consist of a Proforma invoice accepted by the Customer in accordance with clause 2.1 and these standard terms and conditions.
1.2. “Customer” means the company or organisation which accepts the supply of Goods and/or Services.
1.3. “Customer Materials” includes goods, samples, equipment, laboratory results, materials or information provided by the Customer to Betaelegans in connection with the Goods and/or Services.
1.4. “Goods” means the goods, samples, equipment and materials including without limitation reference materials, certified reference materials, chemical reference materials, biological materials, custom synthesis products, analytical data, results, reports, certificates of analysis, and safety data sheets to be provided to the Customer by Betaelegans under the Agreement.
1.5. “Liability” means any and all liability (including liability for the acts or omissions of Personnel):
- (a) for any breach of the Agreement;
- (b) for any misrepresentation, misstatement, or tortious act or omission, including without limitation, br>negligence arising under or in connection with the Agreement;
- (c) for any breach of statutory duty;
- (d) for any actual or alleged product defect or product liability; and/or
- (e) otherwise arising in connection with the performance or contemplated performance of the Agreement br>or any Goods delivered under the Agreement (including under indemnification provisions (if any)).
1.6. “Personnel” means any officers, employees, agents or contractors.
1.7. “Price” means the price agreed for the Goods and/or Services.
1.8. “Proforma Invoice” means a Price given by Betaelegans to be paid by the Customer for the supply of Goods and/or Services.
1.9. “Services” means the services, including without limitation any proficiency testing services, custom synthesis services, analysis of data, interpretation of results, production of reports, certification of Goods, training, distribution of samples and/or related services to be provided to the Customer by Betaelegans under the Agreement.
1.10. “Betaelegans” means Betaelegans Biotech. SL any company controlled by, controlling or under common control or otherwise affiliated with Betaelegans Biotech. SL.
Unless the terms and conditions are expressly accepted by Betaelegans Biotech. SL by a specific written amendment hereto, the Agreement between the parties shall be on these standard terms and conditions. All other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document) are expressly excluded from the Agreement.
A reference to a particular law is a reference to it as in force for the time being, taking into account any amendment, extension, application or re-enactment, and including any subordinate legislation for the time being in force made under it.
2. Orders and Proforma Invoice
2.1. Any Proforma Invoice is given by Betaelegans on the basis that no agreement shall come into existence until the Customer has endorsed and paid it without amendment. Any Proforma Invoice is valid for a period of one calendar month only from the date of issue or as otherwise noted in the Proforma Invoice, provided that it was not previously withdrawn.
2.2. The Customer shall promptly supply to Betaelegans the Customer Materials and any other materials required for Betaelegans to execute the Customer’s order for the supply of Goods and/or Services and the Customer hereby acknowledges that its failure in providing the Customer Materials may preclude or delay the supply of the Goods and/or Services.
2.3. Betaelegans reserves the right at its sole and absolute discretion to refuse orders from Customers for the supply of Goods and/or Services.
3. Delivery and Damage
3.1. Betaelegans shall endeavor to supply the Goods and/or Services within the time agreed, and if no time is agreed, within a reasonable time.
3.2. Any dates specified by Betaelegans for supply of the Goods and/or Services are intended to be an estimate, and time for delivery shall not be made of the essence by notice. In no circumstances shall Betaelegans be liable for loss or damage of any kind by any delay in the supply of the Goods and/or Services. Betaelegans may make delivery of the Goods and/or Services by instalments and the Customer shall accept such instalments.
3.3. Any liability of Betaelegans for non-delivery of Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note against any invoice for such Goods.
3.4. Unless otherwise specified in any Proforma invoice, Goods shall be shipped at Customer expense by Betaelegans. Betaelegans adheres to applicable regulations governing the shipment of Goods. Products that require special packaging and conditions may incur additional charges per shipment.
3.5. Any Goods which are damaged, defective or incorrect when delivered to the Customer must be reported to Betaelegans immediately. Betaelegans may at its sole and absolute discretion elect to replace or refund the Customer in respect of such Goods, and any claim for refund or replacement must be made within 30 (thirty) days of delivery. After said 30 (thirty) days, any delivered Goods are deemed accepted and conforming to the Agreement. Any replacement Goods will be dispatched within a reasonable time. All Goods must be stored in accordance with instructions and no claim for any refund and/or replacement will be payable by Betaelegans unless these instructions have been followed by the Customer at all times.
4. Warranty and Indemnification
4.1. Betaelegans warrants that all items in the Goods and/or Services are correctly identified and in good order, and have not to the best of its knowledge been tampered with, altered, added to or substituted in any way whatsoever prior to delivery to the Customer. Any statements (whether written or oral) as to the Goods supplied or Services carried out and all/any opinions in any reports or other communications provided by Betaelegans to the Customer are made in good faith and if applicable on the basis of the Customer Materials. Betaelegans laboratory products are subjected to tests by Quality Control to ensure quality. At time of dispatch, the standard purity and physical constants stated are typical values; they may vary slightly from batch to batch. Further specification and information may be supplied on request; non-standard quality testing procedures may be performed on payment of applicable additional charges.
4.2. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE STANDARD TERMS AND CONDITIONS, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, RIGHTS, OBLIGATIONS, LIABILITIES AND OTHER TERMS WHETHER EXPRESS OR IMPLIED BY STATUTE OR COMMON LAW IN CONNECTION WITH THE GOODS AND/OR SERVICES (INCLUDING WITHOUT LIMITATION ANY RELATING TO PERFORMANCE, CARE AND SKILL OR COMPLIANCE WITH REPRESENTATIONS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE AGREEMENT AND DISCLAIMED.
4.3. Save to the extent Betaelegans is liable for negligence in its provision of the Goods and/or Services (subject to the other terms of this clause 4), Betaelegans shall have no Liability for the use made by the Customer of the Goods and/or Services, for advice supplied by Betaelegans to the Customer, and/or for any decisions taken by the Customer or costs incurred by the Customer in consequence of such use.
4.4. Nothing in these standard terms and conditions excludes or limits the liability of Betaelegans to the extent prohibited by law.
4.5. Subject to clause 4.4:
4.5.1. Betaelegans’s total aggregate Liability (including for negligence) in all circumstances shall be limited to the value of the affected Goods and/or Services and the Customer shall have a duty to mitigate any loss suffered by it; and
4.5.2. Betaelegans shall have no Liability in any circumstances for loss of profit, loss of business or revenue, loss of anticipated savings, depletion of goodwill, any third party claims, or any indirect or consequential loss or damage, which arise out of or in connection with any Agreement, even if advised of the possibility of such losses or damages.
4.6. The Customer’s sole remedy in respect of any Liability of Betaelegans or its Personnel shall be in damages as set forth and limited in these standard terms and conditions.
4.7. Save insofar as Betaelegans can be shown to have been negligent in providing the Goods and/or Services, the Customer shall: (a) fully indemnify Betaelegans and Betaelegans’s Personnel against any loss, damage or injury (including injury resulting in death) to property or person sustained by (i) Betaelegans and/or its Personnel, (ii) the Customer and/or its Personnel, and (iii) any third party, where such loss, damage or injury is caused by the negligent act or omission or willful misconduct of the Customer or the Customer’s Personnel; and (b) fully indemnify Betaelegans against all damages, costs, expenses of any kind whatsoever (including reasonable attorneys’’ fee and other professional fees) and losses suffered or incurred by Betaelegans as a result of, or in connection with any third party claim brought against Betaelegans resulting from death, injury, or any other damage or loss whatsoever occasioned by the use made of the Goods and/or Services including without limitation any report or other information or advice of Betaelegans.
5. Health and Safety
5.1. Customer is responsible for the safe handling of all Goods supplied by Betaelegans, specifically Goods are supplied on condition that Customer shall ensure they are handled only by qualified personnel trained in laboratory procedure and familiar with the potential hazards. Information may not be available on the potential hazards of many chemical compounds. The absence of a warning shall not be interpreted as an indication or representation of safety. A complete Safety Data Sheet (“SDS”) for all laboratory products is available on the Betaelegans website or upon request.
5.2. The Customer shall ensure that all appropriate safety measures, regulations and legislation are observed when sending any Customer Materials to Betaelegans and shall ensure that any hazardous material is clearly marked. Where the Customer knows or suspects that any substance or procedure it is providing, making available or requesting may give rise to a hazard, the Customer shall make Betaelegans aware in writing of the nature of that hazard before arranging for the delivery to Betaelegans (or collection by Betaelegans) of the Customer Materials or before any Betaelegans Personnel will be exposed to the hazard.
6. Customer Materials
6.1. The Customer shall ensure that the Customer Materials are tested or inspected and are suitable for use by Betaelegans in the supply of the Goods and/or Services. The Customer shall arrange at its own expense and risk the delivery of the Customer Materials to Betaelegans. The Customer warrants that each item comprised in the Customer Materials is correctly identified, in good order and has not to the best of the Customer’s knowledge been tampered with, altered, added to or substituted in any way whatsoever.
6.2. Where applicable, the Customer may direct that Betaelegans stores, destroys, or re-delivers to the Customer the Customer Materials (or such part remaining) after the supply of the Goods and/or Services has been completed, such storage, destruction or re-delivery to be at the Customer’s own cost. If no direction is received within three (3) months of completion of the supply of Goods and/or Services, the Customer shall be deemed to have abandoned the Customer Materials, and Betaelegans shall be entitled to store, destroy or re-deliver such Customer Materials and to charge the Customer reasonable costs for the same at its discretion or to use such Customer Materials for Betaelegans’s internal research purposes.
7. Risk and Title
7.1. Risk in the Goods shall pass to the Customer on delivery of the same to it. However, title shall remain with Betaelegans and shall not pass to the Customer until payment in full (in cash or cleared funds) has been received by Betaelegans.
7.2. Until such time as title in the Goods has passed to the Customer:
7.2.1. Betaelegans shall have absolute authority to re-take, sell or otherwise deal with any of the Goods which have not yet been used by the Customer; and
7.2.2. Betaelegans shall be reasonably entitled to require the Customer to either: (i) return the Goods to Betaelegans at the Customer’s own cost; or (ii) reimburse Betaelegans for the cost of providing the Goods.
7.3. Responsibility and liability in respect of the safe storage and handling, use and subsequent disposal of Goods will transfer to the Customer on delivery, and the Customer shall ensure that all Goods are handled appropriately on and after delivery at all times by suitably qualified Personnel.
8.1. Betaelegans reserves the right to amend the Price to take account of any variations in the Goods and/or Services as a result of additional information from or a request in writing by the Customer. Betaelegans shall obtain the Customer’s prior written approval before performance of any additional work or variations in the Goods and/or Services. Unless expressly stated otherwise, all Prices are exclusive of applicable sales, use, excise or other taxes, which shall be charged at the rate and in the manner prescribed by law from time to time.
9.1. The Price shall become payable upon the earlier of performance of the Services and/or delivery of any Goods comprised in the Goods and/or Services or as otherwise set out in the Proforma invoice. Payment shall be made by the Customer in the currency (which is Euros €) and at the time specified in the Proforma invoice. There is no discount for early payment. Betaelegans shall be entitled to payment for all instalments of Goods and/or Services supplied to the Customer, whether under a blanket order or otherwise.
9.2. Payment is made when money is credited to Betaelegans’s account. Negotiable instruments or promises to pay do not constitute payment.
9.3. The Customer shall make all payments due under the Agreement without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
9.4. The Customer shall pay to Betaelegans, in addition to other amounts payable hereunder, any costs reasonably incurred by Betaelegans (including without limitation, legal costs and fees of debt collection agencies) in recovering any amounts due to Betaelegans from the Customer pursuant to the Agreement.
9.5. Betaelegans may appropriate sums received from the Customer against any debt due to Betaelegans from the Customer (under this or any other Agreement), irrespective of any purported appropriation by the Customer.
9.6. If the Customer fails to pay Betaelegans any sum due pursuant to the Agreement then, without limiting any other right or remedy available to Betaelegans:
9.6.1. Betaelegans may cancel the Agreement and all other agreements with the Customer or suspend any further deliveries to the Customer;
9.6.2. Betaelegans may immediately demand payment of any other invoices not yet due, with liability to pay interest on sums due applying from the date of the demand
10. Intellectual Property
10.1. Unless otherwise agreed in writing, the ownership of any and all rights in and to any data, results, reports, certificates of analysis, safety data sheets, copyright, patents, designs, conceptual solutions, analyses, processes, techniques, methodologies, inventions, software, databases, know-how, confidential information, and any other rights in intellectual property (whether registered or unregistered) (“IP”), other than third party rights, arising as a result of Betaelegans providing the Goods and/or Services (“Betaelegans IP”), shall remain vested in Betaelegans.
10.2. The Customer shall not without the prior written consent of Betaelegans use, exploit, divulge, or disclose to third parties any Betaelegans IP which may be communicated to or gained by the Customer in connection with or as a result of Betaelegans providing the Goods and/or Services, save that Betaelegans shall grant the Customer a non-exclusive non-transferable, non-sub licensable right to use the Betaelegans IP in any Goods provided to the Customer in accordance with the terms of this Agreement. No further license or immunity under any patent is granted or is to be implied by the supply of any Goods and/or Services.
10.3. The Customer assumes sole liability for all patent matters arising from its use of Goods supplied. Any usage instructions or recommendations made by Betaelegans shall not be taken as a license to operate under nor to infringe any third party patent.
10.4. The Customer hereby agrees to indemnify and hold harmless Betaelegans in respect of all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Betaelegans arising out of or in connection with any use of the Goods and/or Services supplied in a manner which infringes, or allegedly infringes, the intellectual property rights of a third party.
11. Restrictions on Use – Betaelegans name and Betaelegans´s products
11.1. Betaelegans’s products are intended for laboratory research purposes only and unless otherwise indicated are not to be used for any other purpose.
11.2. The Customer shall not use Betaelegans’s name in any way to imply endorsement or otherwise by Betaelegans of the Customer Materials, or of any process, information, advice, product or service provided, marketed or sold by the.
11.3. For the avoidance of doubt, any expiration date specified on shipping documentation relating to the Goods is an estimate of expected useful life and does not constitute a warranty.
12.1. Both parties shall use reasonable endeavors to keep confidential for a period of five (5) years from the acceptance date of the supply of Goods and/or Services any confidential information (oral or written) provided or disclosed by or on behalf of the other. This clause shall not apply to any information which at the time of disclosure is (or subsequently becomes) published or generally available to the public (other than as a breach of the receiving party’s obligation under this clause), which at the time of disclosure was already in the possession of the receiving party (other than under an obligation to the disclosing party), which subsequently legally comes into their possession from another source, which was independently developed, or which is required to be disclosed in order to comply with a legal requirement.
13.1. If the Customer cancels, extends or delays (or purports to cancel) the Agreement or part thereof, or fails to accept supply of the Goods and/or Services at the time agreed or if no time is agreed within a reasonable time, then the Customer shall be liable for (without prejudice to any other rights of Betaelegans) and shall indemnify and keep indemnified Betaelegans against any resulting loss, damage or expense or additional costs incurred by Betaelegans in connection with the supply or non-supply of the Goods and/or Services including without limitation the cost of any services, material, plant or tools used or intended to be used therefor and the cost of labor and other overheads, including a percentage in respect of profit.
13.2. Where the Goods and/or Services (or any part thereof) supplied by Betaelegans to the Customer are for the provision of custom synthesis services (“Betalains Synthesis Services”) the Customer acknowledges that occasionally certain Synthesis Services can be difficult to perform. In the event that Betaelegans is unable to perform and/or complete all or any part of the Synthesis Services for any reason (including without limitation due to technical and experimental difficulties) then Betaelegans reserves the right at its sole and absolute discretion to cancel such Synthesis Services at any time and terminate the Agreement without liability to the Customer. Where Betaelegans exercises its right to cancel under this clause 13.2, Betaelegans shall notify the Customer in writing as soon as reasonably practicable, and (a) if the Proforma invoice provides for a fixed Price and/or timeframe, then the Customer shall not be liable for payment for such Betalains Synthesis Services; or (b) if the Proforma invoice provides for an estimate of Price and/or timeframe, then the Customer shall be liable only for payment of the Betalains Synthesis Services or part thereof performed by Betaelegans as at the date of such cancellation notice.
14.1. Betaelegans may terminate the Agreement forthwith by notice in writing if the Customer is in material breach of the Agreement and, where such breach is remediable, the Customer fails to remedy the same within 30 (thirty) days of the receipt of a written request from Betaelegans to do so.
14.2. The termination of the Agreement shall be without prejudice to the rights and duties of either party accrued prior to termination. The clauses in the Agreement which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination. The Customer shall pay the Price in respect of any Goods and/or Services (or part thereof) supplied prior to termination, regardless of the reason for termination.
15. Force Majeure
15.1. If Betaelegans is unable (whether temporarily or permanently) to procure any services or goods necessary to enable it to supply the Goods and/or Services or if the supply of the Goods and/or Services is prevented or hindered by reason of any cause beyond Betaelegans’s reasonable control (which shall include acts of God, governmental action, war or national emergency, acts of terrorism, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, currency restrictions, strikes or other labor dispute, or restraints or delays affecting shipping or carriers), Betaelegans may cancel the Agreement by notice in writing to the Customer so far as it relates to the Goods and/or Services not then supplied or work not then done and such cancellation shall not give rise to any claims by the Customer provided that the Customer shall remain liable to pay for the Goods and/or Services supplied prior to the date of such cancellation.
16.1. The Customer shall not assign any Agreement or any part thereof without the written consent of Betaelegans. Betaelegans may assign the Agreement or any part thereof to any member of the Betaelegans Group or its successors. Betaelegans shall be entitled to sub-contract any part of the Services to be provided hereunder. Any attempted unauthorized assignment by Customer is null and void.
16.2. Each right or remedy of Betaelegans under the Agreement is without prejudice to any other right or remedy of Betaelegans whether under the Agreement or not.
16.3. If any provision of the Agreement shall be held to be illegal, invalid or unenforceable in whole or in part, either under enactment or role of law, such provision or part shall to that extent be deemed not to form part of the Agreement but the legality, validity and enforceability of the remaining provisions of the Agreement shall not be affected unless the absence of the unenforceable provision woold materially affect Betaelegans’s rights or remedies in which case Betaelegans shall have the right to immediately terminate the Agreement.
16.4. Betaelegans reserves the right to announce publicly that it is providing Goods and/or Services to the Customer with the prior written consent of the Customer, not to be unreasonably withheld.
16.5. Any waiver by Betaelegans of any breach of, or any default under, any provision of any Agreement by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms or conditions of the Agreement.
16.6. No term or condition of the Agreement is enforceable any person who is not a party to the Agreement and Betaelegans and the Customer may exercise, without the consent of any third party, any rights they may have to amend or rescind the Agreement.
16.7. The construction performance and validity of the Agreement shall be governed by the internal laws of the Spanish country applicable to contracts made and performed, without regard to principles of conflicts of laws, and the parties submit and waive any objection to the exclusive jurisdiction of the Spanish Court for adjudication of any disputes relating in any way to the Agreement or any Goods or Services delivered pursuant to the Agreement.