Terms and Conditions of Sale

GENERAL
1. All quotations and sales of available catalog products by BiCell Scientific, Inc. (“BiCell”) are subject to and expressly conditioned upon these Terms and Conditions of Sale (the “Terms”). By placing an order or requesting a quotation the purchaser consents to these Terms. Custom pre-orders of monoclonal antibodies and nanobodies are, in addition to these Terms, subject to the terms set forth in Appendix 1 (Custom Order Terms).
2. If purchaser submits any order acknowledgement or other document that contains terms and conditions that are inconsistent with or in addition to the Terms and, if applicable, the Custom Order Terms, those inconsistent or additional terms are specifically rejected by BiCell. Fulfillment of purchaser’s order does not constitute acceptance of any of purchaser’s terms and does not serve to modify or amend the Terms and Custom Order Terms. No variation of the Terms and Custom Order Terms will be binding upon BiCell unless agreed to in writing by an authorized representative of BiCell.
ORDER CHANGES AND CANCELLATIONS
1. Orders may be changed or amended only by written agreement by both parties, stating the particular changes and the effect, if any, on the price and time of delivery.
2. Purchaser may cancel an order only by providing written notice to BiCell. If no work towards the order has been performed by BiCell the order will be cancelled and the purchaser charged an administrative fee of five (5) percent of the gross sales price of the original order. If work towards the order has commenced by BiCell, cancellation of an order at any time shall result in an immediate charge of one hundred (100) percent of the gross sales price of the original order.
DELIVERY AND ACCEPTANCE
1. BiCell will use its reasonable commercial efforts to ship catalog products from BiCell’s facility within five (5) business days of order acceptance. Products are shipped using BiCell’s standard packaging and shipping methods, for which fees may apply. Delivery of products shall be made FCA BiCell’s shipping point (INCOTERMS® 2010). Title and risk of loss passes to purchaser upon delivery. BiCell may, in its sole discretion, make partial shipments of products and invoice immediately therefor. Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of purchaser’s order.
2. Purchaser may revoke acceptance of any shipment of products or services which are not in compliance in all material aspects to the product description and specifications set forth by BiCell in the applicable portion of its online catalog (see the BiCell website located at www.bicellscientific.com) at the time of purchase within thirty (30) days from the date of delivery.
RETURNS. Purchaser shall not return products without BiCell’s prior written consent. BiCell reserves the right to require disposal instead of return. Title to returned products shall transfer to BiCell upon acceptance at the facility designated by BiCell. Any returned products must be in their original packaging with the original label affixed, and unaltered in form and content.
PRICES AND TAXES. All taxes, duties, levies and similar expenses which are or become due in connection with an order with the exception of any taxes on BiCell’s profits must be paid by purchaser.
PAYMENT
1. Payment is due without any deductions, discounts, set off or debt settlement within thirty (30) days of receipt of the product ordered. Where the order exceeds US$10,000, the purchaser will pay 25% on placing the order and the remaining 75% within thirty (30) days of receipt of product as provided above.
2. If an invoice balance is overdue, without waiving any other rights and remedies at law or relative to any order, BiCell may: (a) refuse to accept additional orders; (b) refuse to ship ordered products or render further services; and/or (c) seek collection from purchaser, including all legal fees and other costs of collection.
3. BiCell, may in its sole discretion, and without notice to purchaser, change the terms of payment to payment in full or in part prior to shipment of the entire undelivered balance of said products.
4. In the event of default by purchaser in the payment of the purchase price or otherwise, purchaser agrees to pay the balance then due to BiCell on demand. Purchaser also agrees to pay one and one-half percent per month or, if higher, the maximum allowed by law, from the due date until the date on which payment is made in full, and all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by purchaser in any of the terms hereof.
LIMITED WARRANTY AND REMEDY
1. BiCell warrants to the purchaser for a period of thirty (30) days from the date of delivery, that the products shall conform in all material aspects to the product description and specifications set forth by BiCell in the applicable portion of its online catalog (see the BiCell website located at www.bicellscientific.com) at the time of purchase; provided, however, that the products have been stored under the prescribed conditions during such warranty period.
2. BiCell’s duty under this warranty shall be to replace such portion of products as are proven to not conform to specifications as set out here above, always free of charge, provided that: (i) BiCell is informed by the purchaser in writing within ten (10) days after the defect(s) have been revealed; (ii) purchaser shall afford BiCell prompt and reasonable opportunity to inspects all products as to which any claim is made. The warranty does not cover damage sustained by normal wear and tear or any damage arising in consequence of negligence or improper handling or use of the products or parts thereof, or of improper storage in the event of the products wholly or partly being stored by the purchaser prior to use.
3. EXCEPT FOR THE FOREGOING WARRANTY BICELL EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES EXPRESS OR IMPLIED IN RELATION TO THE PRODUCTS. WITHOUT PREJUDICE TO THE FOREGOING GENERALITY BICELL DOES NOT WARRANT THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS OR ANY ASPECT OF THEIR PERFORMANCE OR THAT THEY OR THEIR USE WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. BICELL MAKES NO REPRESENTATIONS OR WARRANTIES PERTAINING TO ANY ADVICE OR SERVICES THAT MAY BE PROVIDED BY BICELL TO PURCHASER.
LIMITED LIABILITY
1. BiCell’s total liability in relation to this contract, the purchase or use of any products obtained from BiCell, the warranty contained herein and in relation to the products provided under or in relation to this contract whether arising in contract, tort or by some other theory of law or equity shall be capped at the amount paid by purchaser for the relevant products or services or US$5,000 whichever shall be the greater.
2. In no event shall BiCell, its officers, directors, employees or its affiliates or their respective representatives be liable to the purchaser or its affiliates, whether based in contract, tort, warranty or any other legal or equitable grounds, for any loss of the income, profit or savings or cost of capital of purchaser or its affiliates, for any indirect or consequential damages resulting from or relating to the order or the products delivered or services provided hereunder, even if BiCell has been advised of the possibility of such damages.
INTELLECTUAL PROPERTY. By entering into each and any contract, the purchaser acknowledges that all know how and intellectual property rights in respect of assays, reagents, antibodies, proteins, cell lines, vectors, working and testing methods, procedures and protocols originated or used by BiCell shall, as between the parties, be retained exclusively by BiCell.
PURCHASER’S USE OF PRODUCTS
1. Products that are made by BiCell and supplied to purchaser are intended for research and related diagnostic use only are not to be used for any other purposes, including but not limited to, in vivo diagnostic purposes, clinical diagnosis or treatment, food, drugs, medical devices or cosmetics for humans or veterinary use. BiCell products are not intended for resale by purchaser.
2. BiCell reserves the right to refuse to accept any order where it reasonably believes that the products will be used for unauthorized purposes by purchaser. BiCell reserves the right to refuse to accept any order where it reasonably believes that the products will be offered for resale or onward distribution by an unauthorized distributor or reseller.
3. Purchaser acknowledges that the products have not been tested by BiCell for safety and efficacy in food, drugs, medical devices, cosmetics or for clinical treatment or any other use. Purchaser assumes responsibility to assure that the products purchased from BiCell are approved for use under the law of the state or country of its residence. Purchaser has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from BiCell. Purchaser is solely responsible for: (a) obtaining any necessary intellectual property permission related to the use of products, (b) compliance with all applicable regulatory requirements and generally accepted industry standards, and (c) conducting all necessary testing and verification, including for efficacy for the intended purpose. Purchaser agrees to comply with instructions, if any, furnished by BiCell relating to the use of the products and not misuse the products in any manner. No products purchased from BiCell shall be used as food, drugs, medical devices or cosmetics.
4. Purchaser shall not: (a) decompile or reverse engineer any of the products or attempt to do so; (b) perform any studies to determine the structure, chemical composition, or other makeup of the products; or (c) make any copy, derivative or progeny of the product, nor permit or enable any third party to do so, unless and to the extent expressly permitted in any contract between BiCell and purchaser.
PURCHASER’S REPRESENTATIONS AND INDEMNITY
1. Purchaser represents and warrants that it shall comply with all applicable laws, regulations and ordinances, including but not limited to those pertaining to the following: export control, pharmaceutical, cosmetic and food preparations, electrical or electronic waste, introduction or production and use of chemical substances (e.g. Toxic Substances Control Act, REACH), and bribery and corruption (e.g. Foreign Corrupt Practices Act and UK Bribery Act).
2. Purchaser shall defend BiCell, its employees, officers, directors, agents, and affiliates (the “BiCell Indemnitees”), and shall indemnify and hold the BiCell Indemnitees harmless from and against all suits, actions, or proceedings, at law or in equity, and from all claims, costs, liability, damages, losses and expenses (including, without limitation, attorney’s fees, consultants’ fees, experts’ fees) (a) arising from or in connection with the transport, storage, sale or use of products, (b) resulting from purchaser’s breach of the Terms or Custom Order Terms, and/or (c) arising from the negligence, recklessness or misconduct of purchaser, its affiliates, or their respective agents, employees, partners or subcontractors.
FORCE MAJEURE. Delay in performance or non-performance of any obligation contained in the Terms or Custom Order Terms, other than purchaser’s obligation to pay, shall be excused to the extent such failure or non-performance is caused by force majeure. Force majeure shall mean any cause or event preventing performance of an obligation under the order or contract which is beyond the reasonable control of BiCell or purchaser, as the case may be, including without limitation, fire, flood, power shortage, mechanical breakdown, sabotage, shipwreck, embargo, explosion, strike or other labor trouble, accident, riot, acts of governmental authority (including, without limitation, acts based on laws or regulations now in existence as well as those enacted in the future), acts of God. The party prevented to perform by force majeure shall promptly provide notice to the other party, explaining in detail the full particulars and the expected duration thereof and it shall use its commercially reasonable efforts to remedy the interruption or delay if it is reasonably capable of being remedied. In the event a force majeure situation extends for more than thirty (30) days, the order or contract may be terminated without any liability by either party upon written notice thereof to the other. In the event of a force majeure compelling BiCell to allocate production and deliveries of products, BiCell may allocate its available supply of products among BiCell customers (including purchaser) and BiCell internal uses in such manner as BiCell deems fair and reasonable. Such allocation shall not be deemed a breach of contract.
MISCELLANEOUS
1. No waiver by BiCell of any provisions of these Terms or the Custom Order Terms is effective unless explicitly set forth in writing. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms or the Custom Order Terms operates, or may be construed, as a waiver thereof.
2. Purchaser shall not assign any of its rights or delegate any of its obligations under these Terms or the Custom Order Terms without BiCell’s prior written consent. Any purported assignment or delegation in violation hereof is null and void. No assignment or delegation relieves purchaser of any of its obligations hereunder.
3. The relationship between the parties is that of independent contractors. Nothing contained in these Terms or the Custom Order Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
4. These Terms and the Custom Order Terms are for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.
5. Purchaser shall not, without the prior written consent of BiCell, (a) refer to BiCell, its affiliates, products or services in any marketing, promotion or other publicity material, whether written or in electronic form, or (b) use proprietary brand names, trademarks, trade names, logos and other intellectual property owned by BiCell or one of its affiliates.
6. BiCell will request, process and use personal data (e.g. contact name and business addresses) from purchaser to fulfill its obligations under these Terms or the Custom Order Terms and for the continuing relationship management with purchaser. BiCell’s processing activities shall be governed by its privacy policy posted at https://bicellscientific.com/privacy/.
7. All purchases are subject to and construed in accordance with the laws of the State of Missouri, U.S.A. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
8. The exclusive venue for proceedings arising from purchases from BiCell shall be a court of competent jurisdiction in Missouri.
9. If any provision of these Terms or the Custom Order Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of these Terms or the Custom Order Terms or invalidate or render unenforceable such provision in any other jurisdiction.
10. Provisions hereof which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and the Custom Order Terms including, but not limited to, the following provisions: Sections 7 through 11.

Appendix A: Custom Order Terms

A.1. GENERAL

All quotations and sales of custom, pre-ordered products (e.g., custom orders of monoclonal antibodies and nanobodies) supplied by BiCell are subject to and expressly conditioned upon the Terms as modified and expanded by this Appendix A (the “Custom Order Terms”). By placing a custom order or requesting a quotation for custom products, the purchaser consents to the Terms and these Custom Order Terms.
If purchaser submits any order acknowledgement or other document that contains terms and conditions that are inconsistent with or in addition to the Terms and the Custom Order Terms, those inconsistent or additional terms are specifically rejected by BiCell. Fulfillment of purchaser’s order does not constitute acceptance of any of purchaser’s terms and does not serve to modify or amend the Terms and these Custom Order Terms. No variation of the Terms or Custom Order Terms will be binding upon BiCell unless agreed to in writing by an authorized representative of BiCell.

A.2. INTELLECTUAL PROPERTY

Section 9 of the Terms is replaced by this Section A.2 of these Custom Order Terms.
By entering into each and any contract for custom, pre-ordered products (e.g., custom orders of monoclonal antibodies and nanobodies), the purchaser acknowledges that all know how and intellectual property rights in respect of assays, reagents, testing methods, procedures and protocols originated or used by BiCell in the making of such custom, pre-ordered products shall, as between the parties, be retained exclusively by BiCell.
By entering into each and any contract for custom, pre-ordered products (e.g., custom orders of monoclonal antibodies and nanobodies), the purchaser acknowledges that, as between BiCell and the purchaser, BiCell retains the exclusive right to manufacture, distribute and sell the such custom, pre-ordered products, including applicable antibodies and nanobodies produced therefrom, for research purposes. Purchaser agrees that it will not use any materials, cells or information provided by BiCell to manufacture such custom, pre-ordered products, including applicable antibodies and nanobodies produced therefrom, for distribution or sale to third parties for research purposes.

A.3. Revisions to the Terms

The first sentence of Section 3.1 of the Terms is hereby deleted. BiCell will use its reasonable commercial efforts to ship custom order products pursuant to the schedule provided to the purchaser in BiCell’s applicable quotation.
Section 10.iv of the Terms is hereby deleted.