These are the terms and conditions (“Terms”) under which Synoligo Biotechnologies, Inc. (“Synoligo”) provides its services and any product derived from the performance of such services. These Terms, together with Synoligo’s quotation and order acknowledgment, herein constitute the entire agreement between you and Synoligo with respect to any products and services provided under it, and no other promises or agreements shall be of any force or effect unless otherwise put in writing and signed by both parties. Without limitation to the foregoing, Synoligo expressly rejects any additional terms and conditions contained in any purchase order or any other document provided by you.
1. Invoices and Payment
1.1 Unless otherwise specified in the quotation or otherwise expressly agreed in writing between you and Synoligo, payment shall be made: a) for any first time or international customers, on receipt of invoice and in advance of provision of any products or services, and b) for all other customers, within thirty (30) days of the date of the invoice without any deduction or offset.
1.2 If you are late in making payment, without limiting any other right or remedy available to Synoligo, Synoligo may: a) without liability, suspend any further performance of services or provision of products, b) charge interest at the rate of 0.05% per day (or to the maximum rate allowable by law) for any overdue payments, in addition to any costs reasonably incurred (including without limitation, legal costs and fees of debt collection agencies) in recovering any amounts due to Synoligo from you, and/or c) immediately demand payment of any other invoices issued but not yet due.
1.3 Unless otherwise expressly stated in writing by Synoligo, all prices quoted are exclusive of a) any applicable taxes, b) import and export duties, tariffs or excise, and c) delivery, postage, packing, storage fees, license fees or other related charges that maybe applicable from time to time which shall be charged in addition. Synoligo reserves the right to amend prices to take into account any variations in the products and services as a result of additional information from you or other changes made by you.
2. Orders
2.1 Synoligo reserves the right at its sole and absolute discretion to refuse to fulfill an order in part or in its entirety for any reason, including without limitation if Synoligo considers the services or products requested to be unsuitable, not feasible or commercially impractical, or for supply of products or services to countries or individuals which may violate any applicable laws or regulations or potentially infringe on third party intellectual property rights. In the event services cannot or unlikely to be completed, Synoligo will contact you to discuss alternative options. Synoligo reserves the right to charge for partial services and/or alternative services performed.
2.2 Any orders accepted by Synoligo cannot be canceled by you unless expressly agreed by Synoligo. Canceled orders by you will be subject to a cancellation charge based on the schedule below, plus reasonable costs incurred by Synoligo in the production of the order, including but not limited to storage and shipment costs, costs of producing non-standard materials and cost of purchasing non-returnable materials.
- Cancellation charge upon commencement of synthesis – 25% of order value
- Cancellation charge upon commencement of cleavage and deprotection – 50% of order value
- Cancellation charge upon commencement of purification – 100% of order value
3. Shipments
Any product will be delivered EX WORKS (Incoterms 2010) Synoligo’s facility at Morrisville NC (the “ Facility”). Title to and risk in product shall pass to you at the earlier of: (i) the time at which product is placed at your request in Synoligo’s storage; or (ii) the time at which the product is made available to your designated carrier at the Facility.
4. Intellectual Property
You are solely responsible for determining if there are any restrictions to the provision of any services and product ordered by you, including without limitation as a result of any third party intellectual property rights or other rights, or any other legal or regulatory obligations. Other than a non-exclusive license from you giving Synoligo the right to use your proprietary information and intellectual property rights to the extent required to perform Synoligo’s obligations in an order for you, nothing in this Agreement shall give either party the right to use the other party’s intellectual property. As between you and Synoligo, intellectual property generated, developed, discovered or invented by Synoligo shall belong to you in connection with services performed for you to the extent: (i) relating solely to the composition of a custom product manufactured for you pursuant to the applicable order, or (ii) which is derived solely by reason of access to your confidential or proprietary information. All other intellectual property generated, developed, discovered or invented in connection with work performed by Synoligo, including any modification of improvements of such intellectual property rights, shall belong to Synoligo.
5. Limited Warranty
5.1 All work products are intended for research use only, Synoligo warrants that: a) any products provided will materially conform to the agreed specifications for the earlier of: i) a period of 30 days from the date of delivery or ii) until such product is processed by you, and that b) any services are performed with reasonable care and skill. EXCEPT FOR THE FOREGOING, ANY PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, AND SYNOLIGO MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY OTHER MATTER WITH RESPECT TO ANY PRODUCT OR SERVICES. For avoidance of doubt, the warranty set out in above does not cover any defects or damage resulting from neglect, carelessness, or misuse of any products (including without limitation improper or inadequate handling or storage of product) or any customary reasonable variations from the specifications in relation to measures, yield and quality of product in accordance with industry standards.
5.2 All claims, including claims for alleged damaged or defective product, shortage, or non-deliverance of product, negligence, or any other causes whatsoever, shall be deemed waived unless made in writing and received by Synoligo within thirty (30) days after delivery of the relevant product. For any valid claims made Synoligo may, at its sole and absolute discretion elect to replace product, re-perform services or provide a credit to you for the purchase price paid by you in respect of the defective portion of such product or service. Failure to give notice of any claims within the aforementioned thirty (30) day period shall be deemed an absolute and unconditional waiver of such claim. The foregoing states the total liability of Synoligo for any breach of warranty hereunder.
5.3 IN NO EVENT SHALL SYNOLIGO BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND ARISING, EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES BEFOREHAND, AND INCLUDING WITHOUT LIMITATION LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, OR ANY LIABILITY TO A THIRD PARTY AS TO ANY OF THE FOREGOING. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SYNOLIGO’S TOTAL LIABILITY SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY YOU FOR THE PRODUCTS AND SERVICES GIVING RISE TO THE LIABILITY.
5.4 YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS SYNOLIGO AND ITS AFFILIATES AND SUBSIDIARIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL THIRD PARTY LOSSES, CLAIMS, DAMAGES, AND LIABILITIES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES) TO THE EXTENT CAUSED BY (i) ANY BREACH BY YOU OF THESE TERMS, (ii) THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY RELATED TO SYNOLIGO’S PROVISION OF SERVICES OR ANY PRODUCT, OR (iii) THE USE, MISUSE, OR SALE OF PRODUCT OR OTHER SERVICES BY YOU, YOUR AFFILIATES AND LICENSEES OR BY ANY THIRD PARTY, IN EACH CASE (i), (ii), AND (iii) ABOVE, OTHER THAN TO THE EXTENT CAUSED BY A BREACH OF THESE TERMS BY SYNOLIGO OR THE NEGLIGENCE OR WILLFUL MISCONDUCT OF SYNOLIGO.
6. Miscellaneous
6.1 Synoligo will not be responsible or liable for delay in performance, or non-performance, when such delays or non-performance result from reasons beyond its reasonable control, including but not limited to as a result of fire, flood, natural catastrophe, strike, labor trouble, accident, riot, epidemic, act of governmental authority or compliance with government request, act of god, or other contingencies and circumstances beyond its reasonable control interfering with, or making commercially impracticable, the manufacture or delivery of product or services or with the supply of any raw materials or utilities used in connection therewith, or in the event Synoligo suspends the operation of the Facility because operation thereof fails to comply with applicable governmental law, regulation, ordinance, standard order or decree relating to pollution, ecology, occupational safety and health, or environmental matters. Synoligo may, during any period of shortage due to any cause, prorate and allo cate its supply of raw materials or resources, and delivery of contractual commitments in such manner as may be deemed fair and reasonable by Synoligo.
6.2 You acknowledge that services are provided on a non-exclusive basis and Synoligo reserves the right to perform similar or identical services for a third party, provided that Synoligo does not breach any obligations with respect to confidential information provided by you.
6.3 You shall not assign any order or any part thereof without the written consent of Synoligo. Synoligo shall be entitled to subcontract any part of the services to be provided hereunder.
6.4 Each right or remedy of Synoligo is without prejudice to any other right or remedy of Synoligo whether under these Terms or not.
6.5 The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.
6.6 The Terms shall be governed by and construed in accordance with the laws of the state of Delaware. The state and federal courts located in Wilmington, Delaware shall have sole jurisdiction over any disputes arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts.