Terms and Conditions
- Acceptance; Entire Agreement
1.1. Customer’s issuance of a purchase order, acceptance of shipment, payment of invoice, written acknowledgement, or any other act of assent shall constitute Customer’s irrevocable acceptance of these Terms and Conditions.
1.2. This Agreement constitutes the entire agreement between the parties with respect to the Products. No additional, inconsistent, or conflicting provisions contained in any Customer purchase order or other document shall be binding upon BlueWhale Bio, and any such terms are hereby expressly objected to and rejected.
1.3. A Confirmed Purchase Order shall prevail over these Terms and Conditions only with respect to price and shipment terms. Notwithstanding anything to the contrary in Customer’s documents, BlueWhale Bio expressly disclaims any obligation to provide Customer with “most favored nation” pricing or any preferential treatment vis-à-vis other customers.
1.4. No amendment, modification, or waiver of this Agreement shall be effective unless set forth in a written instrument executed by authorized representatives of both parties.
- Price; Taxes; Payment
2.1. Unless otherwise expressly agreed in writing, all prices shall be those in effect in BlueWhale Bio’s then-current list price at the time of receipt of Customer’s purchase order. Prices shall remain firm once accepted, except that BlueWhale Bio may adjust prices prior to shipment if: (a) Customer requests a change to the delivery schedule, or (b) the purchase order is based on a non-USD quotation and material exchange rate fluctuations occur between the date of quotation and the date of purchase order.
2.2. Prices are exclusive of all taxes, duties, customs charges, VAT, and other governmental assessments, all of which shall be borne by Customer. If BlueWhale Bio prepays any such amounts, Customer shall promptly reimburse BlueWhale Bio in full.
2.3. Payment terms are net thirty (30) days from the date of invoice, unless otherwise set forth in a Confirmed Purchase Order. Customer shall remit payment in full, without deduction, set-off, or counterclaim. Past-due amounts shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law. Customer shall reimburse BlueWhale Bio for all costs of collection, including reasonable attorneys’ fees.
- Orders; Delivery; Risk of Loss
3.1. Confirmed Purchase Orders may not be cancelled or rescheduled once shipped, except with BlueWhale Bio’s prior written consent.
3.2. Delivery dates provided by BlueWhale Bio are estimates only and are not binding. BlueWhale Bio shall not be liable for delay, regardless of cause.
3.3. Unless stated otherwise in the Order Confirmation, the delivery term is FCA BlueWhale Bio, 2929 Arch St Ste 902, Philadelphia, PA 19104, USA (Incoterms® 2020). Seller will clear the Goods for export (if applicable). Risk of loss transfers to Buyer when the Goods are handed to Buyer’s nominated carrier at the Named Place and, where the Named Place is Seller’s premises, after loading onto the collecting vehicle. Buyer is responsible for freight.
3.4. BlueWhale Bio may make partial shipments, each of which shall be treated as a separate transaction and independently invoiced.
- Inspection and Acceptance
4.1. Customer shall inspect all Products immediately upon receipt. Claims for shortages, discrepancies, or defects discoverable upon reasonable inspection must be made in writing to BlueWhale Bio within ten (10) business days after delivery. Failure to so notify shall constitute conclusive acceptance of the Products.
- Limited Warranty
5.1. Use limitation. Synecta™ reagents are for research use only. They are not intended for diagnostic procedures or for administration to humans or animals.
5.2. Limited warranty. When stored, handled, and used in accordance with the product label and Seller’s written instructions, and used prior to the labeled expiration date, the goods will conform in all material respects to Seller’s Published Specifications in effect on the Order Confirmation date.
5.3. Transit and receipt (dry ice). Seller ships using insulated packaging with dry ice, suitable for the labeled storage temperature. Buyer shall open the shipment promptly on delivery, verify that units are received frozen (or at the labeled storage temperature), and place the goods into the labeled storage condition immediately. Buyer must notify Seller of any visible shipping damage, loss, or evidence of thawing within one (1) business day after delivery and include supporting photographs of the packaging and product condition at receipt. If timely notified, Seller will, at its option, replace the affected quantity or issue a credit.
5.4. Exclusive remedies. For any nonconformity discovered and reported within ten (10) business days after discovery and in any event prior to the labeled expiration date, Seller’s sole obligation and Buyer’s exclusive remedies are, at Seller’s option, (a) replacement of the nonconforming quantity, or (b) credit or refund of the purchase price for the nonconforming quantity.
5.5 Exclusions. This warranty does not apply to goods that have been (a) stored or handled contrary to the label or instructions, including exceeding any specified number of freeze-thaw cycles, (b) contaminated, altered, or used with incompatible materials or processes, or (c) used after the labeled expiration date. Seller does not warrant performance in Buyer’s specific application.
5.6 Claims procedure. Warranty claims must include lot numbers, a description of storage and handling after delivery, the test method used, and representative data. Seller may require return of unused material for evaluation.
- Intellectual Property
Seller retains all IP in the Goods; no rights are transferred by sale. Buyer is licensed to use the Product for research and may not use it for diagnostic, therapeutic, clinical, animal, or fee-for-service purposes, nor reverse-engineer, analyze composition, resell, transfer, or use it to develop competing products (except where such restrictions are prohibited by law). Buyer is responsible for any third-party licenses; no license is granted by implication. Seller may use any feedback freely. Buyer may reference product names in publications but shall not use Seller’s trademarks to imply endorsement without written consent.
- Indemnification
Subject to the exclusions below, Seller will defend a claim that the Goods, as provided and used per §6, directly infringe a patent or copyright and will pay settlements or final judgments up to the purchase price paid for the affected Goods. Seller may procure rights, modify/replace the Goods, or refund the purchase price; this is the exclusive remedy. No obligation for claims based on combinations, modifications, use outside §6 or label/IFU, or compliance with Buyer’s designs/instructions. Buyer must promptly notify Seller and allow Seller to control the defense.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BLUEWHALE BIO BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. BLUEWHALE BIO’S TOTAL LIABILITY IN CONNECTION WITH ANY PRODUCT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR SUCH PRODUCT.
- Compliance, Safety, and Returns (RUO)
9.1 Compliance. Buyer will handle, store, use, and dispose of the Goods in accordance with applicable laws and the product label/IFU.
9.2 Export/sanctions. Buyer will not export, re-export, transfer, or use the Goods in violation of U.S. or other applicable export and sanctions laws.
9.3 Hazard information. Safety Data Sheets are available on request. Buyer is responsible for risk assessment, training, and safe use.
9.4 Returns. Due to the nature of the Goods, no returns are accepted except for approved warranty evaluations under §5, and only with a Seller-issued return authorization.
- Order of Precedence; Conflicting Terms
10.1 Precedence. In case of conflict, the following apply in this order: (a) a separate signed agreement, if any; (b) Seller’s Order Confirmation (including any special terms stated therein); (c) these Terms; (d) Seller’s quotation, if any.
9.2 Buyer terms. Terms in Buyer’s purchase orders or other documents are rejected unless expressly accepted in a signed writing by Seller.
- General
11.1 Independent contractors. The parties are independent contractors.
11.2 Assignment. Neither party may assign without the other’s written consent, except to an affiliate or in a merger or sale of substantially all assets, provided the assignee assumes these Terms.
11.3 Force majeure. Neither party is liable for delay or failure caused by events beyond reasonable control; performance is extended by the delay period.
11.4 Notices. Notices must be in writing to the addresses in the Order Confirmation (or as updated). Email is effective upon confirmed transmission.
11.5 No third-party beneficiaries. None are intended.
11.6 Severability; waiver. If any term is unenforceable, it will be modified as needed and the rest remains in effect. A waiver must be in writing and applies only to the instance given.
11.7 Entire agreement; changes. These Terms (with the Order Confirmation and any signed agreement under §10.1) are the entire agreement. Changes must be in a signed writing.
- Governing Law
These Terms and any dispute relating to the Goods are governed by the laws of the Commonwealth of Pennsylvania, without regard to conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
- Venue; Jury Waiver
Any action arising out of or relating to these Terms or the Goods must be brought in the state or federal courts located in Philadelphia County, Pennsylvania, and each party consents to that venue and to personal jurisdiction there. Each party waives its right to a jury trial in any such action.