V. 20210915 – Last updated September 15th, 2021
1. General Sphere of Validity
These Standard Terms and Conditions of Sale (“Terms”) apply exclusively to all materials and services (collectively, “Materials”) supplied by Genoskin, Inc. , Genoskin SAS and any and all of its affiliates (collectively, “Genoskin”) to you (“Customer”). These terms supersede any terms or conditions that are in addition to, conflict with, or differ from the provisions set forth herein and Genoskin does not and will not recognize any terms of conditions that are in to addition to, conflict with or differ from the terms and conditions set forth herein unless Genoskin expressly agrees in writing to the validity of any such additional, conflicting or differing terms or conditions.
2. Offer and Acceptance
2.1 Genoskin’s offer to sell Materials is expressly conditioned upon Customer’s acceptance of these Terms. Any of the following constitutes Customer’s unqualified acceptance of these Terms: (a) written acknowledgement of these Terms, (b) issuance of a purchase order for Materials, (c) acceptance of any shipment or delivery of Materials, (d) payment for all or a part of Materials, or (e) any other act or expression of acceptance by Customer.
2.2 Genoskin’s offers are without commitment and non-binding. Purchase orders do not become legally binding until Genoskin processes an order confirmation.
2.3 Information about Materials (measurements, weights or other data) as well as Genoskin’s representations of Materials (e.g. drawings and illustrations) are only approximations unless otherwise expressly agreed in writing. Such information or representations do not constitute guaranteed quality features and are only descriptions or depictions of Materials.
2.4 Genoskin reserves rights of ownership and copyright in respect of its cost estimates, drawings, illustrations, calculations and other documents. Customer must obtain Genoskin’s express written consent prior to forwarding any such documents to third parties.
3. Prices and Terms of Payment
3.1 Unless otherwise provided in the applicable order confirmation or purchase order, Genoskin’s stated prices are EXW (Ex works) including packaging, but not including any applicable VAT, customs duties or other taxes or similar fees which must be paid by Customer.
3.2 Genoskin reserves the right to make reasonable adjustments to its prices at any time and will provide documentation of any such adjustments to Customer upon request. Such adjustments can only be made prior to a new project or order. Adjustments can not be made once an order has been initiated by Customer and accepted by Genoskin.
3.3 Unless otherwise provided in the applicable order confirmation or purchase order, all payments are due within thirty (30) days of the date of invoice.
3.4 Customer does not have a right to offset any payments unless Genoskin agrees otherwise in writing.
3.5 Genoskin services require 50% initiation payment, receipt of all products to be tested and validation of study plan before experimental phase initiation.
3.6 Genoskin Materials will be invoiced according to payment schedule provided in the accepted quotation or at any time after delivery to Customer. Without prejudice to Genoskin’s other rights, Genoskin reserves the right to: (i)charge interest on any overdue sums at 7% above the base lending rate (or such higher rate stipulated by applicable law) during the period of delay; (ii) suspend performance of the Contract (including withholding future shipment) in the event that Buyer fails to make payment when due under the Contract or any other contract; and (iii) at any time require such reasonable security for payment as Genoskin may deem reasonable.
4. Delivery and Performance Period
4.1 Genoskin is not liable for delays in delivery insofar as they have been caused by force majeure at the time of Genoskin’s order confirmation and out of Genoskin’s reasonable control (e.g. operational disruptions of any type, difficulties in procurement of materials, transportation delays, strikes, lawful lockouts, staff shortages, material shortages, difficulties in obtaining necessary approvals from governmental authorities, regulatory actions by governmental authorities, deliveries from Genoskin’s suppliers not being made, not being made correctly or not punctually).
4.2 If Genoskin is in delay with a delivery or if delivery is impossible for Genoskin, irrespective of the reason, Genoskin’s liability for compensation will be restricted in accordance with Section 9 of these Terms.
4.3 Compliance with Genoskin’s terms of delivery and performance require punctual and proper fulfilment of Customer’s obligations under these Terms.
5. Transfer of Risk
Unless otherwise provided in the applicable order confirmation or purchase order, delivery EXW Incoterms 2020 is agreed. Risk of loss is transferred to Customer as soon as the Materials have been transferred to the person undertaking the transport. Unless otherwise provided in the applicable order confirmation or purchase order, Customer pays the costs of transport.
6. Claims Based on Defects
6.1 The delivered Materials must be examined carefully for defects immediately upon receipt by or on behalf of Customer. The delivered Materials are deemed to be accepted by Customer if Genoskin has not received a written complaint (email acceptable) within twenty- four (24) hours after delivery.
6.2 If a defect exists in the Materials, Genoskin will, at its discretion, replace the defective Materials or reduce their purchase price to an appropriate degree.
7. Limited Use Rights
Customer acknowledges and agrees that Customer will use the Materials and cause the Materials to be used solely for research purposes in a research setting (the “Intended Use”). For the avoidance of doubt, (a) Materials will not be used by Customer or any of its affiliates or any of their employees, agents, or contractors, or any other person (i) for clinical or patient treatment or in any medical or clinical setting, or on any human patients or research subjects or for any other purpose other than for research purposes in an research setting, and (b) Customer will not, and will not attempt to, or cause any person to, use any means to discover such the Materials’ underlying composition, treatment, or trade secrets.
8.1 “Genoskin Technology” is defined as any pre-existing technology owned or controlled by Genoskin relating directly to its ex vivo human skin models and any improvement thereto, whether patentable or not, arising from the performance of the applicable study plan.
8.2 Aside from Genoskin Technology, any and all results (the “Results”) generated during or resulting from the Materials performed by Genoskin, shall be the exclusive property of Customer upon full payment. For the purpose of these Terms, the term Results shall include, but not be limited to, any and all data, methods, procedures, samples, biopsies, information, reports, documents, intellectual property rights, discoveries, inventions (whether patentable or not), know-how as well as any other work product. Genoskin hereby irrevocably assigns any and all rights, titles and interests in the Results to the Customer.
8.3 The Customer shall be entitled to use Results without any restrictions. Any and all discoveries, inventions, ideas, know-how, developments, formulas, techniques, data and any other results derived or generated by the Customer from the Results shall be the exclusive property of Customer.
9.1 Genoskin warrants that Materials supplied by it conform to Genoskin’s specifications for such Materials and are free from defects in material and workmanship under normal use in accordance with the Intended Use for a period of time ending on the Materials’ expiration date. Genoskin’s warranties with respect to Materials are limited exclusively to this express limited warranty. Any claim based upon this express limited warranty becomes time-barred one (1) year from delivery of the Materials. GENOSKIN EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
9.2 Customer further agrees to indemnify and hold harmless Genoskin from any liability that may arise out of the use or possession of any Materials by Customer or any of its affiliates or any of their respective employees, agents, or contractors, or any other entity or individual who uses or relies upon the Materials in any manner.
10. Limitation of Liability and Disclaimer
10.1 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONTINGENT LOSS OR DAMAGE OF ANY KIND, WHETHER OR NOT REASONABLY FORESEEABLE, INCLUDING WITHOUT LIMITATION ECONOMIC LOSS, LOSS OF DATA, WASTED EXPENDITURE, OR DAMAGE TO REPUTATION OR GOODWILL, ARISING FROM, OR IN CONNECTION WITH, THE PURCHASE, USE OF, OR INABILITY TO USE, THE MATERIALS.
10.2 In no event will the total liability of Genoskin under any theory of liability exceed the purchase price paid for the Material(s) at issue. Customer and Genoskin expressly acknowledge that the exclusions and limitations on liability set forth in this Section 9 are fair and reasonable, and they waive any right to later challenge them as unreasonable, unconscionable, or otherwise.
10.3 The liability exclusions and limitations set forth in this Section 9 will apply to the same extent in favor of Genoskin’s corporate bodies, legal representatives, employees, and other vicarious agents.
11. Disputes and Governing Law
For all transactions with Genoskin Inc., these Terms are governed by, and interpreted in accordance with the substantive laws of the state of Massachusetts without regard to its choice of law rules, and will not, in any way, be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of, or in connection with, the sale or delivery of Materials supplied by Genoskin Inc., or these Terms will be subject to exclusive jurisdiction of the courts of the Massachusetts Court of Chancery and any state appellate court therefrom within the State of Massachusetts (or, if the Massachusetts Court of Chancery declines to accept jurisdiction over a particular matter, then any state or federal court within the State of Massachusetts).
For all transactions with Genoskin SAS, these Terms are governed by, and interpreted in accordance with the substantive laws of France, without regard to its choice of law rules, and will not, in any way, be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of, or in connection with, the sale or delivery of Materials supplied by Genoskin SAS or these Terms will be subject to exclusive jurisdiction of the courts of Toulouse.
Unless otherwise stated to the contrary herein, all notices, consents, demands, waivers, and other communications relating to the sale and purchase of Materials must be in writing and sent by email, overnight courier service, or by registered, first-class mail, return receipt requested and postage prepaid, to the receiving party at its address set forth on the related purchase order or order confirmation (or to such other address that the receiving party may designate from time to time in accordance with this Section 11).
13. Force Majeure
Neither Genoskin nor Customer will be in default in the performance of its obligations hereunder (other than its obligation to make any payment due) or be liable in damages or otherwise for any failure or delay in performance which is due to causes beyond its reasonable control. Either party affected by such an event will promptly give notice to the other, stating the nature of the event, its anticipated duration and action being taken to avoid or minimize its effect.
14. Proprietary Rights
Except as otherwise expressly permitted by either Party in writing, no use of either Party brand names, trademarks, trade names, logos, or other intellectual property is permitted, nor the adoption, use or registration of any words, phrases, or symbols so nearly resembling any of either Party’s intellectual property as to be likely to lead to confusion or uncertainty, to impair or infringe either Party in any manner.
15. No Assignment and Third Parties
Nothing in these Terms is intended to create any rights in third parties against Genoskin.
A waiver by either Genoskin or Customer at any time of any provision of these Terms will not operate as a waiver of such provision at any other time or of any other provision.
If any provision of these Terms is held illegal, invalid, inapplicable, or unenforceable, such provision will be deemed severed from these Terms, and all other provisions will remain in full force and effect.
These Terms may not be modified, changed or discharged, fully or in part, except by an agreement in writing signed by authorized representatives of the parties.
19. Biological samples – Conditions & Limits of Use
The use of biological samples made available by Genoskin is subject to the following conditions:
- The rights and obligations for the management and use of biological samples are transferred by Genoskin to the Customer, at the time of the delivery.
- The Customer accepts and understands that they are responsible for complying with all applicable statutes (international, national, local, federal, state, regional), laws, regulations and guidelines, including those related to research and use, storage, transport, handling and destruction of Biospecimens and accompanying Data.
- The Customer commits to have all the permits, authorizations, declarations and approvals necessary to use the Biological Samples provided by Genoskin.
- The use of biological samples transferred by Genoskin must be done exclusively within the framework of predefined research and for which the authorizations have been obtained, namely: Use for testing efficacy and toxicity of products/ study pertaining to the development of allergic or inflammatory reactions.
- Uses aimed at establishing the genetic characteristics of the donor, (constitutional genetics) which is outside the scope of the authorization granted to Genoskin.
- Uses to establish immortalized or modified cell lines outside of research purposes. No commercial use is authorized.
- The biological samples made available are for the exclusive use of the Customer or by delegation, under his responsibility, to another party involved in the research project. The Customer commits to remain responsible for the samples and their derivatives and not to proceed with any sub-transfer of ownership for the benefit of any person whatsoever.
- Biological samples must be considered and handled by the Customer as potentially infectious. No human biological sample should be considered free from biological risk.