1. Interpretation
1.1 Definitions:
Refeyn, or “us”: Refeyn Inc., a Delaware corporation, with a principal place of business at Suite 200A, 21 Hickory Drive, Waltham, Massachusetts, 02451.
Business Day: any day other than a Saturday, Sunday or federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
Clinical or Diagnostic Use: the examination of specimens, including blood or tissue, solely or principally for the purpose of providing information concerning a physiological or pathological state, a congenital abnormality, to determine the safety and compatibility with potential recipients, or to monitor therapeutic measures, or any other form of diagnosis, monitoring or therapy of disease or other conditions, in man or other animals.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with Condition 11.3.
Consumables: the ready-to-use mass photometry consumables.
Contract: the contract between Refeyn and the Customer for the sale and purchase of the Consumables made on the Effective Date of the Sales Order Confirmation or first Delivery of any part of the Consumables (whichever is the sooner) in accordance with these Conditions.
Customer: the person or firm who purchases the Consumables from Refeyn.
Designated Purpose: the analysis of microliter volumes of purified protein or biomolecule solutions providing relative mass and mass distributions of constituent parts, for uses other than Clinical or Diagnostic Use.
Delivery: delivery shall be as per the relevant Incoterms® 2020 specified in the Sales Order Confirmation, or, if that rule does not apply, on completion of delivery.
Delivery Location: the place of delivery of the Consumables as set out in the Sales Order Confirmation.
Force Majeure Event: as described in Condition 11.2.
Parties: together the Customer and Refeyn, or individually referred to as a Party.
Sales Order Confirmation: the sales order confirmation document issued by Refeyn as acceptance of the Customer’s offer to purchase the Consumables and as confirmation of the Parties agreement to enter into a binding agreement.
Sales Order Confirmation: the sales order confirmation document issued by Refeyn as acceptance of the Customer’s offer to purchase the Consumables and as confirmation of the Parties agreement to enter into a binding agreement.
Refeyn Premises: Refeyn’s trading address, or such other premises as notified to the Customer from time to time by Refeyn.
1.2 Any term capitalised in the Sales Order Confirmation shall have the same meaning in these Agreed Terms unless the context requires otherwise.
1.3 Interpretation:
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails.
2. Basis of Contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Acceptance of these terms constitutes an offer by the Customer to purchase the Consumables in accordance with these Conditions.
2.3 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. Status and use
3.1 The Customer may only use the Consumables for the Designated Purpose unless otherwise previously agreed in writing by Refeyn in the Sales Order Confirmation.
3.2 The Consumables are for research purposes only unless otherwise specified in the relevant EULA. They have not been approved, and may not be used, for Diagnostic or Clinical Use in any country without the Customer obtaining relevant regulatory approval as applicable.
3.3 The Customer acknowledges that the Consumables are not European Conformity (CE), UL or CSA marked and may not comply with any non-mandatory standards.
4. Delivery of Consumables
4.1 Refeyn shall ensure that each delivery of the Consumables is accompanied by a shipping note that shows the date of the Contract, the type and quantity of the Consumables and, if the Consumables are being delivered by instalments, the outstanding balance of Consumables remaining to be delivered.
4.2 Refeyn shall deliver the Consumables ExW Incoterms® 2020 Refeyn Premises. Such Delivery shall take place at any time after Refeyn notifies the Customer that the Consumables are ready for collection, or on the date specified in the Sales Order Confirmation. Delivery shall be deemed completed when the Consumables are handed over to the carrier at the Delivery Location.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Any time schedule or quantity requirement shall not be binding and any failure to meet shall not be deemed a material breach by Refeyn of its obligations.
4.4 Refeyn shall not be liable for any delay in delivery of the Consumables that is caused by a Force Majeure Event or the Customer’s failure to provide Refeyn with adequate delivery instructions or any other instructions that are relevant to the supply of the Consumables.
4.5 If Refeyn fails to deliver the Consumables within 90 days after the date for delivery specified in the Sales Order Confirmation, other than as a result of a Force Majeure Event or the Customer’s failure to provide Refeyn with adequate delivery instructions or any other instructions that are relevant to the supply of the Consumables, the Customer may cancel the Contract for those Consumables and Refeyn’s liability shall be limited to return of the price, or any part of the price, already paid by the Customer for those Consumables.
4.6 Customer shall be the importer of record and is responsible for obtaining import licenses, paying import license or permit fees, duties and customs fees, and any other governmental or import taxes or fees, and preparing and submitting all required documentation in connection with importing the Consumables unless otherwise agreed as an additional service in the Sales Order Confirmation.
4.7 Risk of loss or damage in the Consumables shall pass on Delivery.
5. Quality of the Consumables
5.1 Refeyn warrants that on delivery, the Consumables shall:
(a) conform with their description in the Sales Order Confirmation;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS CONDITION 5, ALL CONSUMABLES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER, AND REFEYN AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
5.3 Refeyn shall not be liable for the Consumables’ failure to comply with the warranties set out in Condition 5.1 in any of the following events:
(a) the Customer uses the Consumables for any purpose other than the Designated Purpose (unless agreed by Refeyn in writing in the Sales Order Confirmation);
(b) the Customer makes any further use of such Consumables after giving written notice of non-compliance;
(c) the defect arises because the Customer failed to follow the written instructions and/or recommendations of Refeyn and/or the manufacturer of the Consumables as to the storage, commissioning, installation, use and maintenance of the Consumables, or good trade practice regarding the same;
(d) the Customer (or its agent) dismantles, opens up, alters or repairs the Consumables, or attempts to do any of those things, without the prior written consent Refeyn;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
Except as provided in this Condition 5, Refeyn shall have no liability to the Customer for the Consumables’ failure to comply with the warranties set out in Condition 5.1.
5.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6. Title
6.1 Notwithstanding the Incoterms® 2020, the Parties agree that title to the Consumables shall not pass to the Customer until Refeyn receives payment in full (in cash or cleared funds) for the Consumables, in which case title to the Consumables shall pass at the time of payment.
6.2 Until title to the Consumables has passed to the Customer, the Customer shall:
(a) store the Consumables separately from all other Consumables held by the Customer so that they remain readily identifiable as Refeyn’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Consumables;
(c) maintain the Consumables in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Refeyn immediately if it becomes subject to any of the events listed in Conditions 8.1(b) or 8.1(c); and
(e) give Refeyn such information relating to the Consumables as Refeyn may require from time to time.
6.3 Subject to Condition 7.4, the Customer may use the Consumables in the ordinary course of its business (but not otherwise) before Refeyn receives payment for the Consumables.
6.4 If before title to the Consumables passes to the Customer the Customer becomes subject to any of the events listed in Condition 8.1(b) or 8.1(c), then, without limiting any other right or remedy Refeyn may have, Refeyn may at any time:
(a) require the Customer to deliver up all Consumables in its possession that have not been irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Consumables are stored in order to recover them.
7. Price and Payment
7.1 The price of the Consumables:
(a) shall be the price set out in the Sales Order Confirmation; and
(b) excludes taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under these Terms (collectively, “Taxes”). Any taxes related to the Consumables purchased pursuant to these Terms are the responsibility of Customer (excluding taxes based on Refeyn’s net income) unless Customer presents an exemption certificate acceptable to Refeyn and the applicable taxing authorities. In the event Refeyn is required to pay any such taxes or other charges, Customer shall reimburse Refeyn therefor on demand.
7.2 The price of the Consumables:
(a) unless otherwise stated on the Sales Order Confirmation is based on ExW Incoterms® 2020 Refeyn’s Premises;
(b) excludes the costs of packaging, insurance, carriage and shipping of theConsumables; and
(c) excludes any tariffs or import duties payable on import of the Consumables into the Customer’s territory.
7.1 To the extent that payment for the Consumables is not made at the time of purchase, Refeyn may invoice the Customer for the price of the Consumables, plus VAT at the prevailing rate (if applicable), in one or more instalments, on or at any time after the date or dates specified in the Sales Order Confirmation.
7.2 The Customer shall pay (unless set out otherwise in the Sales Order Confirmation), the invoice in full and in cleared funds within 30 days after the date of the invoice. Payment shall be made to the bank account nominated in writing by Refeyn. Time for payment is of the essence.
7.3 If the Customer fails to make any payment due to Refeyn under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.4 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding as required by law). Refeyn may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Refeyn to the Customer.
8. Termination
8.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a)the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(c) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business.
8.2 Without limiting its other rights or remedies, Refeyn may suspend provision of the Consumables under the Contract or any other contract between the Customer and Refeyn if the Customer becomes subject to any of the events listed in Condition 8.1(a) to Condition 8.1(c), or Refeyn reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.3 Without limiting its other rights or remedies, Refeyn may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.4 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
8.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9. Limitation of Liability
9.1 Nothing in these Conditions shall limit or exclude Refeyn’s liability for:
(a) where the Customer is located in the United Kingdom only, death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) any matter in respect of which it would be unlawful for Refeyn to exclude or restrict liability.
9.2 Subject to Condition 9.1:
(a) Refeyn shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract, regardless of whether such loss was foreseeable; and
(b) Refeyn’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Consumables paid by the Customer to Refeyn.
10. Force Majeure
10.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 6 months or more, the party not affected may terminate the Contract by giving at least 4 weeks’ written notice to the affected party.
10.2 Force Majeure shall mean any event or circumstance beyond a party’s reasonable control, including but not limited to: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this Condition, or companies in the same group as that party); (h) customs delays or regulatory delays; and (i) interruption or failure of utility service.
11. General
11.1 Assignment and other dealings. Neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
11.2 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes all prior negotiations, discussions and dealings concerning the subject matter hereof. There are no understandings, inducements, commitments, conditions, representations or warranties of any kind, whether direct, indirect, collateral, express or implied, written or oral, from either party to the other, other than as contained in this Contract.
11.3 Variation. No amendment or modification of any provision of the Contract shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
11.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.
11.6 Notices. Any notice required to be given by either party under this Contract shall be made in writing and shall be delivered by hand or sent by prepaid first class recorded delivery to the postal address in the Sales Order Confirmation, or if by email to the email below for Refeyn and for the Customer to the person referred to in the Sales Order Confirmation. A notice shall be treated as having been received if delivered by hand within normal business hours when so delivered or, if delivered by hand outside normal business hours, at the next start of normal business hours; or if sent by first class recorded delivery mail on a normal Business Day, at 9.00 am on the second Business Day subsequent to the day of posting, or, if the notice was not posted on a Business Day, at 9.00 am on the third Business Day subsequent to the day of posting; or if sent by email, if sent within normal business hours when so sent or, if sent outside normal business hours, at the next start of normal business hours provided the sender has either received an electronic confirmation of delivery or has telephoned the recipient to inform the recipient that the email has been sent. Email notices to Refeyn shall be sent to Legal@refeyn.com.
11.7 Third party rights. No one other than a party to the Contract shall have any right to enforce any of its terms.
11.8 Governing Law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed interpreted in accordance with the laws of the State of Delaware, excluding its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
11.9 Jurisdiction. Each party irrevocably agrees that the State or Federal courts in Wilmington, Delaware shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
11.10 Miscellaneous. The captions and section headings set forth in the Contract are used for convenience only and will not be used in defining or construing any of the terms and conditions set forth in the Contract. Unless the context indicates otherwise, words importing the singular number will include the plural and vice versa, and words importing person will include firms, association, partnerships and corporations, including public bodies and governmental entities, as well as natural persons. Compliance.
12. Compliance
12.1 Compliance with Laws. Each party will at all times and at its own expense: (i) strictly comply with all applicable laws, rules, regulations, ordinances and governmental orders, now or hereafter in effect, relating to its performance of the Contract, including, without limitation, export and import laws and regulations; (ii) pay all fees and other charges required by such laws, rules, regulations and orders; and (iii) maintain in full force and effect all licenses, permits, authorizations, registrations and qualifications from all applicable governmental departments and agencies to the extent necessary to perform its obligations hereunder. If requested by Refeyn, Customer will sign written assurances and other export or import related documents, as may be required under applicable export or import laws and regulations.
12.2 Trade Compliance. Any Consumables may be subject to U.S. export controls and the trade laws of other countries. The parties agree to comply with all applicable export control regulations and to obtain any required licenses or item classification to export, re-export, or import deliverables. The parties agree not to export or re-export to entities on the current U.S. export exclusion lists or to any embargoed or terrorist supporting countries as specified in the U.S. Export Administration Regulations (EAR). The parties will not use Consumables for prohibited nuclear, missile, or chemical biological weaponry end uses as specified in the EAR. Customer will advise Refeyn in writing within three (3) calendar days of any actual or perceived non-compliance with applicable export control laws and regulations (to include sanction and embargo laws).
12.3 Anti-Bribery and Corruption Laws. Each party hereunder represents and warrants compliance with all applicable U.S. and foreign anti-bribery and corruption laws and regulations including, but not limited to, the U.S. Foreign Corrupt Practices Act (“FCPA”) and the U.K. Bribery Act.