Terms and Conditions of Sale by Exo Lab

This Agreement (the “Agreement“) is entered into as of the date of the Order (the “Effective Date“), by and between Exo Lab Italia S.r.l., with registered office in Località Boschetta di Pile (AQ), Italy with VAT Number 02294980681 (“Exo Lab“), and the customer listed on the Order (“Purchaser“), collectively referred to herein as the “Parties“, or severally as the “Party“.

These terms and conditions shall govern all terms and conditions of purchase and sale of Exo Lab materials and shall constitute a legally-binding contract between the parties. Any additional terms or conditions stated in any purchase order, invoices or other directions or instructions shall not be binding upon the Parties unless separately agreed to by the receiving Party in writing.

1. Definitions

Unless otherwise defined herein, all initially capitalized terms used in this Agreement shall have the following meanings:

    1. Deliverable(s)” means any material, data, analysis and documentation required to be delivered to Purchaser as described in this Agreement;
    2. Material (s)” means Exo Lab product specified in each Order;
    3. Order” means an order submitted by Purchaser for the purchase of Material.

2. Orders

2.1 Orders

Exo Lab shall use reasonable business efforts to notify Purchaser if the Materials or services requested in a purchase order cannot be fulfilled; otherwise Exo Lab will notify Purchaser of the estimated delivery date for such Materials and/or services.

Prior to Exo Lab’s notification to Purchaser of acknowledgment of an order, Purchaser may cancel the outstanding order by providing Exo Lab with written notice of cancellation. Once Exo Lab has acknowledged a purchase order, such purchase order shall become non-cancellable without Exo Lab’s prior written consent.

2.2 Delivery

Exo Lab will use reasonable business efforts to fulfill each Order within a reasonable period of time. All ship dates specified by Exo Lab are Exo Lab’s best approximation of the anticipated ship date and shall not be deemed to represent a fixed or guaranteed ship date. Exo Lab reserves the right to ship all of the Materials covered by any Order at one time or in separate parts or lots from time to time.

All Materials shall be shipped to Purchaser EXW (Exo Lab Facility) INCOTERMS 2020, unless otherwise agreed in a writing agreement signed by Exo Lab. All risk of loss, damage, or destruction of the Materials shall pass to Purchaser on delivery of Materials by Exo Lab to the carrier at Exo Lab’s facility. Exo Lab will select the mode of shipment and the carrier. Exo Lab will be responsible for pre-carriage costs and arrangements up to the point that the goods are delivered to the carrier, and Purchaser will be responsible for and pay all packing, shipping, freight, and insurance charges and export costs thereafter.

2.3 Taxes

Purchaser shall be responsible for and shall promptly pay all sales, use, value added, withholding, and other taxes and duties, if any, levied or imposed on either party as a result of the transactions contemplated by this Agreement and Exo Lab will be promptly reimbursed for any and all taxes or duties (excluding income taxes) that Exo Lab may be required to pay in connection with this Agreement.

2.4 Changes

Any changes to the scope of the Order shall be set forth in a written amendment executed by an authorized representative of the Purchaser and Exo Lab.

2.5 Acceptance

Purchaser shall immediately accept or reject the Deliverables upon delivery from Exo Lab, and provide a prompt written statement of nonconformities to be corrected by Exo Lab prior to Purchaser’s acceptance of the Deliverables; provided, however, that if Purchaser fails to provide such written notice of non-conformance within ten (10) days of Purchaser’s receipt of such Deliverables, the Deliverables will be deemed to have been accepted by Purchaser.  

3. Compensation

3.1 General

All payments to Exo Lab shall be made in Euros, free of currency controls or other restrictions, and are exclusive of all sales, use, value added, withholding, and other taxes and duties. Purchaser shall be responsible for and shall promptly pay all sales, use, value added, withholding, and other taxes and duties, if any, levied or imposed on either Party as a result of the transactions contemplated by this Agreement, and Exo Lab will be promptly reimbursed for any and all taxes or duties (excluding income taxes) that Exo Lab may be required to pay in connection with this Agreement. 

3.2 Payment Terms

The Purchaser shall pay all invoices as soos they are issued. 

4. Warranties

4.1 Exo Lab represents and warrants that:

  1. any declaration contained in this document, particularly in relation to the identity of the PDNVs and its composition;
  2. to identify the applicable legal requirements under the legislation on protection of workers and environment;
  3. to keep track of the quantities of PDNVs used and to be able to provide documentation (e.g., shipping documents, disposal records, process leakage information, etc.) that attests the fact that records of these quantities are kept;
  4. that PDNVs are not supplied by Exo Lab to the public;
  5. that the substance will only be handled by internal staff appointed by Exo Lab.

Purchaser’s exclusive remedy, and Exo Lab’s sole liability, for breach of the warranties set forth in this paragraph is for Exo Lab to, at Exo Lab’s sole option, either (i) refund the fee paid to Exo Lab for such Exo Lab Material (exclusive of shipping and handling charges), or (ii) replace the Exo Lab Material.  The warranties set forth in this paragraph apply only if Purchaser handles and stores the Exo Lab Material as described in the applicable Exo Lab Material product information sheet.  To obtain the exclusive remedy, Purchaser must report the lack of viability or non-conformation to specifications to Exo Lab ‘s Technical Service Department within the applicable Warranty Period.  Any expiration date specified on the Exo Lab Material shipment documentation states the expected remaining useful life, but does not constitute a warranty or extend any applicable warranty period.  

4.2 ExoLab Material is intended for laboratory research use only. It is not intended for any animal or human therapeutic use, any human or animal consumption, or any diagnostic use. Any proposed commercial use is prohibited without a license from Exo Lab.

While Exo Lab uses reasonable efforts to include accurate and up-to-date information on this product sheet, Exo Lab Italia srl makes no warranties or representations as to its accuracy. Citations from scientific literature and patents are provided for informational purposes only. Exo Lab does not warrant that such information has been confirmed to be accurate or complete and the customer bears the sole responsibility of confirming the accuracy and completeness of any such information.

This product is sent on the condition that the Purchaser is responsible for and assumes all risk and responsibility in connection with the receipt, handling, storage, disposal, and use of the Exo Lab Material including without limitation taking all appropriate safety and handling precautions to minimize health or environmental risk. As a condition of receiving the Material, the Purchaser agrees that any activity undertaken with the Exo Lab Material and any progeny or modifications will be conducted in compliance with all applicable laws, regulations, and guidelines. This product is provided ‘AS IS’ with no representations or warranties whatsoever except as expressly set forth herein and in no event shall Exo Lab, its parents, subsidiaries, directors, officers, agents, employees, assigns, successors, and affiliates be liable for indirect, special, incidental, or consequential damages of any kind in connection with or arising out of the customer’s use of the product. While reasonable effort is made to ensure authenticity and reliability of materials on deposit, Exo Lab is not liable for damages arising from the misidentification or misrepresentation of such Materials.

Please see the website www.exolabitalia.com for further details regarding the Products. 

5. Publicity

5.1 Except as required to comply with applicable laws, Purchaser shall not mention or otherwise use the name, insignia, symbol, trademark, trade name, or logotype of Exo Lab (or any abbreviation or adaptation thereof) in any publication, press release, promotional material, or other form of publicity regarding the provision of Services without the prior written approval of Exo Lab in each instance.

6. Indemnification

Purchaser agrees to indemnify, defend, and hold harmless Exo Lab, its affiliates, and their respective directors, officers, employees, and personnel from and against any third party claims, actions or proceedings (“Claims“) arising out of, attributable to, or resulting from any Purchaser (a) use, handling, or storage of the Deliverables and any materials, products, or services based upon or relating to the Deliverables, including but not limited to any claim that any such use, handling or storage infringes upon any third party intellectual property rights; (b) negligent or reckless acts or omissions, or willful misconduct; (c) breach of any covenant, representation or warranty of Purchaser under this Agreement; or (d) failure to comply with applicable laws. Exo Lab shall provide the Purchaser prompt notice of any such Claim, including a copy thereof, served upon it, and shall cooperate fully with the Purchaser and its legal representatives in the investigation of any such Claim, at the Purchaser’s expense. The Purchaser shall have the right to exercise sole control over the defense and settlement of any such Claim, including the sole right to select defense counsel and to direct the defense or settlement of any such Claim; provided that the Purchaser shall not enter into any settlement that admit fault or liability on Exo Lab’s part without the prior written consent of Exo Lab. Exo Lab shall have the right to select and to obtain representation by separate legal counsel. If Exo Lab exercises such right, all costs and expenses incurred by Exo Lab for such separate legal counsel shall be borne by Exo Lab. The Purchaser shall be relieved of any indemnification obligation hereunder if Exo Lab either (a) compromises or settles any Claim without the Purchaser’s prior written approval; or (b) makes any admission or takes any other action with respect to any such Claim that is prejudicial to the defense of such Claim, without the Purchaser’s prior written approval.   

7. Limitation of Liability

Except for liability arising under the purchaser’s indemnity obligations for claims asserted by third parties, and to the extent not prohibited by law, in no event shall either Party hereunder be liable to the other party hereunder for special, incidental, consequential or indirect damages arising from or in relation to this Agreement, the purchased Material or services (whether in contract, tort, negligence, strict liability, by statute or otherwise). this limitation shall apply even if such Party has been advised or is aware of the possibility of such damages. Exo Lab’s maximum aggregate liability to Purchaser hereunder for any claim related to, or in connection with, this Agreement or Materials (whether in contract, tort, negligence, strict liability, by statute or otherwise) shall be limited to an amount equal to the total payments by purchaser to Exo Lab under this Agreement. This remedy is intended to be the sole and exclusive remedy of Purchaser under this Agreement. Should this sole and exclusive remedy fail of its essential purpose, however, Exo Lab will return the purchase price to Purchaser minus the reasonable value of the Purchaser’s use of the purchased materials or services. The parties also agree that, regardless of the failure of the sole and exclusive remedy, Exo Lab will not be liable for any consequential damages of whatsoever kind or nature. The parties intend the exclusion of consequential damages as an independent agreement apart from the sole and exclusive remedy herein. 

8. Miscellaneous

8.1 Independent Contractors

The Parties are independent contractors, and neither party’s employees nor agents shall be considered to be an employee, partner, joint venturer, or agent of the other party, nor entitled to any of the benefits that each Party provides to its own employees. Neither party shall represent, suggest, or otherwise imply to any person that such person or entity is an employee or agent of the other party or has the authority to contractually bind the other party.

8.2 Force Majeure

In the event Exo Lab is delayed or hindered in or prevented from the performance of any act required hereunder by reasons of strike, lockouts, labor troubles, inability to procure materials, failure of power or restrictive governmental or judicial orders or decrees, riots, insurrection, war, pandemic, acts or God, acts of terrorism, inclement weather or other similar reasons or cause beyond its control (“Force Majeure Event“), then performance of such act shall be excused for the period of such delay, provided that Exo Lab provides prompt written notice of such event, and uses reasonable efforts to avoid or remove the cause of such Force Majeure Event, and shall resume performance of its obligations as soon as practicable thereafter. 

8.3 Integration

This Agreement constitute the entire agreement among the parties with respect to the subject matter herein and supersedes all prior and contemporaneous agreements, whether written or oral, of the parties hereto, relating to the subject matter herein. For the avoidance of doubt, any terms and conditions or other notations provided by Purchaser on a Purchaser Sales Order form or any other form or order, whether inconsistent with or supplemental to this Agreement, are hereby rejected and shall be void and of no force or effect.

8.4 Assignment

Neither party may assign or otherwise transfer this Agreement, or any rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, and any attempted sale, pledge, assignment, sublicense or other transfer in violation thereof shall be void and of no force or effect, provided, however, either party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially of its business, or in the event of its merger, consolidation, change in control or similar action. This Agreement shall be binding upon the parties, their legal representatives, and permitted successors and assigns.

8.5 Disputes

All disputes, controversies or claims arising under or related in any manner to this Agreement (“Disputes”), shall be governed by the Italian Law and resolved by the court of L’Aquila (AQ). 

The parties agree that notifications of any proceedings, reports, communications or any other document in connection with a Dispute shall be in English and sent as set forth in Section 8.6 of this Agreement. 

8.6 Compliance with Laws

Purchaser shall comply with all applicable laws, regulations and ordinances, including but not limited to those pertaining to the following: export control, transportation of organisms and vectors, and introduction or use of chemical substances. Purchaser shall maintain in effect all required licenses, permissions, authorizations, consents, and permits. Purchaser shall comply with all applicable export and import laws in its purchase of Material hereunder and assumes all responsibility for all shipments governed by such laws. Exo Lab may terminate the Agreement or suspend delivery if any governmental authority imposes restrictions on the Material. 

8.7 Notice

Any notices provided for or required under this Agreement shall be in writing and delivered to the parties at the postal addresses set forth in the Exo Lab Sales Order, by (a) first class certified mail, return receipt requested, or (b) a nationally-recognized overnight courier service. 

8.8 Severability; Waiver; Amendments; Counterparts

If any provision of this Agreement is for any reason found to be unenforceable or invalid, the remainder of this Agreement shall continue in full force and effect as if such invalid or unenforceable provision had not been included herein. Failure to enforce any rights under this Agreement, regardless of the length of time such failure continues, shall not constitute a waiver of those or any other rights or any future breaches, unless in a writing signed by authorized representatives of the non-breaching party and then only to the extent expressly set forth in such writing. This Agreement may be amended only by a writing signed by any authorized representative of Purchaser and Exo Lab. This Agreement may be executed in counterparts, and transmitted by electronic means, including through portable document format or via facsimile, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.