V. 20230918 – Last updated September 18th, 2023
1. General/Sphere of Validity
These Standard Terms and Conditions of Sale (“Terms”) apply exclusively to all materials (the “Materials”) and services (the “Services”) supplied by Genoskin SAS, Centre Pierre Potier, 1 Place Pierre Potier, 31100 Toulouse, France, and any and all of its affiliates (collectively, “Genoskin”) to you (“Customer”) as described in an accepted quote or otherwise on Genoskin’s website (“Website”) at the following link: https://genoskin.com/. 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 OR CONDITIONS THAT ARE IN 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 and provide the Services is expressly conditioned upon Customer’s acceptance of these Terms. Any of the following constitutes Customer’s acceptance of these Terms: (a) written acknowledgement of these Terms, including through a validation of an order placed on the Website for Materials, (b) issuance of a an order for Materials and/or Services, (c) acceptance of any shipment or delivery of Materials and/or provision of Services, (d) payment (e.g., by credit card) for all or a part of Materials and/or Services, or (e) any other act or expression of acceptance by Customer
2.2 Genoskin’s offers are without commitment and non-binding. An order does not become legally binding until accepted pursuant to Section 2.3, in which case, it shall constitute an accepted order (“Purchase Order”).
2.3 Customer may place an order (i) for Materials on the Website, by creating a customer account and a login, or (ii) for Materials and/or Services by email (outside the Website), at https://genoskin.com/shops/, subject to the following conditions:
(a) If an order for Materials is placed on the Website, the order will be deemed finalized after (i) Customer has read and agreed to the Terms on the day of the order and has validated the order summary on the Website, in accordance with the Terms and (ii) Genoskin has issued a confirmation within 2 working days, notably including the prices and timelines, and has received the payment. If Customer does not receive the confirmation within such time period, the order is deemed to be rejected.
(b) If the order for Materials and/or Services is placed by email outside the Website: Customer shall indicate in its order the following items: the relevant Materials and/or Services, the desired quantity of Materials and/or Services, the acceptable shipping dates and/or performance date, the delivery and performance address and the invoicing address. Genoskin shall issue a quote based on the items listed in the order with the applicable price(s) as well as, for Services, a study plan including the timelines and any information and materials required for the performance of such Services (the “Study Plan”). Such quote is valid for 30 days after the date of issuance of the quote by Genoskin. If Customer validates the quote within this time period, the corresponding quote signed by Customer’s duly authorized person will constitute an accepted order.
2.4 Customer may not cancel a Purchase Order once it has been accepted pursuant to Section 2.3. If Customer requests modification of a Purchase Order, the modification will take effect only as from the sending of a confirmation email, if applicable, by Genoskin, detailing the modifications to be implemented as well as the new price and, if necessary, the new possible date(s) of shipment of the relevant Material(s) and/or of performance of the relevant Services.
2.5 Subject to mandatory applicable law, returns of Materials are only permitted in the event that Materials are defective, subject to Section 6.
3. Prices and Terms of Payment
3.1 The price of each Material is indicated on the Website at the date of placement of the order or is otherwise indicated in the relevant quote issued by Genoskin pursuant to Section 2.3(b). The price of each Service is indicated in the quote issued by Genoskin pursuant to Section 2.3(b). Genoskin’s stated prices are EXW (Ex Works) (Incoterms 2020) 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. Unless otherwise specified in a Purchase Order, such adjustments can only be made prior to a new order. Adjustments cannot be made once an order has been initiated by Customer and accepted by Genoskin.
3.3 All payments are due within thirty (30) days of the date of invoice.
3.4 Customers do not have a right to offset any payments unless Genoskin agrees otherwise in writing.
3.5 Any Services require 50% initiation payment, receipt of all Customer Materials (as defined in Section 4.2) and signed validation of a Study Plan before experimental phase initiation.
3.6 Genoskin Materials and Services will be invoiced according to the payment schedule provided by Genoskin in the accepted quote. Without prejudice to Genoskin’s other rights, Genoskin reserves the right to: (i) charge interest on any overdue sums at the rate applied by the European Central Bank to its most recent refinancing operation (floored to 0 if negative) plus 10 percentage points during the period of delay, plus a one-time administrative cost / recovery fine of EUR 40 per invoice overdue; (ii) suspend performance of the Purchase Order (including withholding future shipment of Materials and performance of Services) in the event that Customer fails to make payment when due under the Purchase Order or any other contract; and (iii) at any time require such reasonable security for payment as Genoskin may deem reasonable. In case of dispute, Customer will pay within five (5) business days any item/part of the amount invoiced, which is not or no longer in dispute.
3.7 Customer shall also pay Genoskin for additional Services in case Services must be remade, for example because of Customer’s instructions, reasonable and necessary travel and other expenses that are incurred by Genoskin in the performance of the Services.
3.8 The transfer of ownership of the Material(s) to Customer is suspended until full payment of the corresponding invoice to Genoskin. Customer undertakes to take all measures to ensure, at all times, the identification of the Material(s) with a view to their claim, before full payment of the price.
4. Delivery and Performance Period
4.1 The delivery times of the Materials are given in the description of each Material on the Website or in the applicable Purchase Order. The performance times of the Services are provided in the Study Plan. Genoskin is not liable for delays in delivery of Materials and performance of Services insofar as they have been caused by force majeure 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) or are otherwise imputable to Customer.
4.2 Customers shall provide Genoskin with all materials and related information as necessary to perform the Services subject to a Study Plan (“Customer Materials”) and in such quantities as required for the performance of such Services. For the avoidance of doubt, Customer Materials shall only be used by Genoskin for the performance of the Services. Genoskin shall confirm receipt of the Customer Materials and shall promptly inform Customer in case of any issues relating to, or loss or damage to, the Customer Materials. Genoskin shall not be liable for any loss or damage to Customer Materials while in storage at its facility, except if such loss or damage is caused by its willful misconduct or gross negligence.
4.3 If Genoskin is in delay with a delivery or a performance or if delivery or performance is impossible for Genoskin, irrespective of the reason, Genoskin’s liability for compensation will be restricted in accordance with Section 10 of these Terms.
4.4 Compliance with Genoskin’s terms of delivery and performance require punctual and proper fulfillment of Customer’s obligations under these Terms.
5. Transfer of Risk
Delivery EXW (Incoterms 2020) shall apply is agreed. Consequently, (i) risk of loss is transferred to Customer as soon as the Materials or Services’ deliverables have been transferred to the person undertaking the transport, and (ii) Customer pays the costs of transport.
6. Claims Based on Defects and non-compliance with Specifications
6.1 For the purposes hereof, “Specifications” shall mean, with respect to Materials or Services, the specifications as set out in the accepted quote and/or in the Study Plan.
6.2 The delivered Materials or Services’ deliverables must be examined carefully for non-conformity with Specifications immediately upon receipt by or on behalf of Customer. The delivered Materials or Services’ deliverables are deemed to be accepted by Customer if Genoskin has not received a written complaint (email acceptable) within twenty-four (24) hours after delivery. In any event, the Materials or Services are subject to the warranty set forth in Section 9.
6.3 If a non-conformity with Specifications exists in the Materials, Genoskin will, at its discretion, replace the defective Materials or reduce their purchase price to an appropriate degree. In the event a return is permitted, Customer shall first obtain a return authorization and return instructions from Genoskin before returning any Materials to Genoskin. In the event a destruction of the Materials is required by Genoskin, Customer shall first obtain a destruction authorization and destruction instructions from Genoskin before destroying any Materials.
6.4 If the Services do not comply with the Specifications and said non-compliance is due to Genoskin’s negligence, Genoskin will, as soon as reasonably practicable and at its sole discretion, provide Customer with a credit note or re-perform the Services at its own costs. Any credit note or re-performance in accordance with this Section 6.4 shall constitute sole and exclusive remedy in relation to such non-conforming Services.
6.5 Genoskin shall only be responsible for such non-conformity with the Specifications to the extent existing on or prior to delivery to Customer; Genoskin shall in no way be responsible for non-compliance caused after the delivery thereof (such as, non-compliance that is caused by the incorrect handling, storage and/or shipment of the Materials or Services’ deliverables after the delivery). Genoskin shall not be responsible for any non-compliance of the Services to the extent such non-compliance results from any non-compliance of or defect in the Customer Materials, consumables, raw materials and/or components delivered by Customer to Genoskin.
7. Limited Use Rights
Customer acknowledges and agrees that all Materials and Services’ deliverables are experimental and are provided “as is” and Customer will use the Materials and Services’ deliverables and cause the Materials and Services’ deliverables to be used solely for research purposes in a research setting (the “Intended Use”). For the avoidance of doubt, (a) Materials and Services’ deliverables will not be used by Customer or any of its affiliates or any of their employees, agents, or contractors, or any other person 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, including its affiliates, will not, and will not attempt to, or cause any person to, use any means to discover the Materials’ underlying composition, treatment, or trade secrets or Services’ underlying know-how, procedures, protocols, methods, techniques, formula, data or trade-secrets, together or separately constituting Genoskin Technology.
8. Intellectual Property and Results
8.1 “Genoskin Technology” is defined as (i) any pre-existing technology owned or controlled by Genoskin, including but not limited to, materials, tools, patents, know-how, Confidential Information or other proprietary information, methods, protocols, procedures, formulae, data, trade secrets and techniques, including in relation to its ex vivo human skin models, primary mast cells, as well as (ii) any improvement thereto, whether patentable or not, arising from the performance of a Purchase Order and/or a Study Plan.
8.2 Customer herewith grants Genoskin the right to use the Customer’s intellectual property, including the Customer Materials and any other Customer’s Confidential Information for the purpose of the performance of the Services hereunder.
8.3 Except for the Material(s) and the Services’ deliverables under the conditions set forth herein, each Party acknowledges that the Terms and the exchange of Confidential Information do not grant any ownership or exploitation rights over the Confidential Information received from the other Party. Genoskin Technology shall remain Genoskin’s full and complete property. Genoskin reserves rights of ownership and copyright in respect of its cost estimates, drawings, illustrations, calculations and other documents. Customers must obtain Genoskin’s express written consent prior to forwarding any such documents to third parties.
8.4 Any and all results generated from the use of Materials provided by Genoskin or the performance of the Services by Genoskin, including Services’ deliverables, but excluding any Genoskin Technology, and excluding any new or improved generic process, technique, method, formula, invention or know-how, developed during the performance of Services (the “Results”), shall be the exclusive property of Customer upon receipt of full payment of the corresponding Genoskin quotes and invoices. Genoskin hereby irrevocably assigns any and all rights, titles and interests in the Results to the Customer.
8.5 The Customer shall be entitled to use Results without any restrictions. Any and all discoveries, inventions, ideas, developments, formulas, data and any other results derived or generated by the Customer from the Results shall be the exclusive property of the Customer.
9.1 Genoskin warrants that Materials supplied by it conform to Specifications and are free from defects in material and workmanship under normal use in accordance with the Intended Use. Genoskin further warrants that it shall provide the Services in compliance with all material respects with applicable laws, rules and regulations applicable to it in the country where it will perform the Services. Genoskin’s warranties with respect to Materials and Services 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 and performance of the Services. GENOSKIN EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, COMPLETENESS, ACCURACY, SAFETY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE. In particular, except as otherwise agreed between Genoskin and Customer in writing, Genoskin expressly disclaims any warranty, guarantee or representations that Services will:
i. be successful, or achieve any goal or specification described in the applicable Purchase Order or Study Plan, except that Genoskin shall perform Services with reasonable due care consistent with Genoskin standard operating procedures;
ii. result in the delivery of any deliverables meeting any Specification if Customer requires that Genoskin perform Services using Customer’s procedures or protocols, provided that Genoskin performs the Services with reasonable due care consistent with Customer’s procedures or protocols;
iii. not or does not infringe any patent and/or intellectual property rights of third parties.
9.2 Information about the Services and the Materials (measurements, weights or other data) as well as Genoskin’s representations of Materials (e.g., drawings and illustrations) on its Website 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 and Services.
10. Indemnification; Limitation of Liability and Disclaimer
Indemnification. Customer shall indemnify, protect, defend and hold Genoskin (including its Affiliates, employees, officers, directors, attorneys, agents, representatives, successors and assigns) harmless from and against all losses that may be incurred by, made, charged, or instituted against Genoskin by a third party, and which arise out of, result from or are based on (i) the material breach of these Terms by Customer; (ii) Customer’s negligence or willful misconduct; (iii) infringement of any third party intellectual property right as a result of the Services required to be performed by Genoskin under a Purchase Order and/or a Study Plan, (iv) Genoskin’s use of the Customer Materials for the performance of Services hereunder; (v) the use or possession of any Materials or the use of the Services’ deliverables or the results of the Services 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 and the Services’ deliverables in any manner, as well as for any use of the Materials and of the Services’ deliverables other than the Intended Use, or (vi) Genoskin’s use of Customer’s intellectual property or Customer’s Confidential Information.
10.2 Genoskin shall indemnify, protect, defend and hold Customer (including its Affiliates, employees, officers, directors, attorneys, agents, representatives, successors and assigns) harmless from and against all losses that may be incurred by, made, charged or instituted against Customer by a third party, and which arise out of, result from or are based on (i) material breach of these Terms by Genoskin, or (ii) Genoskin’s negligence of willful misconduct.
10.3 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 OR PERFORMANCE OF, OR INABILITY TO PERFORM THE SERVICES, OR INABILITY TO USE THE SERVICES’ DELIVERABLES OR RESULTS.
10.4 In no event will the total liability of Genoskin exceed the purchase paid for the Material(s) and Services at issue. Customer and Genoskin expressly acknowledge that the exclusions and limitations on liability set forth in this Section 10 are fair and reasonable, and they waive any right to later challenge them as unreasonable, unconscionable, or otherwise.
10.5 The liability exclusions and limitations set forth in Section 10 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
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 or the performance of the Services supplied by Genoskin or these Terms will be subject to exclusive jurisdiction of the courts of Paris, France.
Unless otherwise stated to the contrary herein, all notices, consents, demands, waivers, and other communications relating to the sale and purchase of Materials and Services 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 to such other address that the receiving party may designate from time to time in accordance with this Section 12).
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. Genoskin may freely transfer, in whole or in part, its rights and/or obligations under these Terms to its Affiliates or in the event of a sale or transfer of all or substantially all of its assets or lines of business whether by merger, acquisition or otherwise. Subject to the foregoing, these Terms shall inure to the benefit of each Party, its successors and permitted assigns. The term “Affiliate” herein shall mean any entity now or hereafter controlled by, controlling or under common control with Genoskin, directly or indirectly, where “control” means ownership of fifty percent (50%) or more of the share capital or voting rights.
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:
- (a) 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 EXW.
- (b) The Customer accepts and understands that it is 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 human biospecimens and accompanying data.
- (c) The Customer commits to have all the permits, authorizations, declarations and approvals necessary to use the human biological samples provided by Genoskin.
- (d) The use of biological samples transferred by Genoskin must be done exclusively within the framework of predefined non-clinical research and for which the authorizations have been obtained, including but not limited to: Use for testing efficacy and toxicity of products/ study pertaining to the development of allergic or inflammatory reactions.
- (e) Are prohibited:
(i) Uses aimed at establishing the genetic characteristics of the donor, (constitutional genetics) which is outside the scope of the authorization granted to Genoskin.
(ii) Uses to establish immortalized or modified cell lines outside of research purposes.
(iii) Any commercial uses.
(iv) Uses aimed at sequencing genetic material derived from Genoskin Materials.
- (f) The biological samples made available are for the exclusive use of the Customer or by delegation, under Customer’s responsibility, to another party involved in the research project of the Customer. The Customer commits to remain responsible for the samples and their derivatives and not to proceed with any sub-transfer of ownership.
- (g) Biological samples must be considered and handled by the Customer as potentially infectious. No human biological sample should be considered free from biological risk.
The Customer undertakes to keep strictly confidential all information and documents brought to its attention by Genoskin during or prior to the negotiation and/or execution of these Terms or the negotiation of the purchase of Materials and Services (“Confidential Information”). The Customer undertakes not to disclose nor use, and to prevent the disclosure and use of, Confidential Information, except to and by its personnel on a need-to-know and need-to-use basis for these Terms, provided that such personnel shall be bound by confidentiality and non-use obligations at least as stringent as those set forth in this Section 20. These confidentiality and non-use obligations shall remain in effect for the duration of these Terms and until the later of: (a) the last Confidential Information becoming public knowledge other than through the fault of the Customer or (b) ten (10) years after the expiration or termination of the Terms applicable to the Customer’s last order (or any longer period required by applicable law for the Confidential Information that qualifies as a trade secret). All Confidential Information received by the Customer under these Terms shall remain the property of Genoskin and shall be, at Genoskin’s discretion, returned or destroyed promptly upon expiration or termination hereof, and at any time upon request by Genoskin.
21. Personal Data Protection
Genoskin and Customer shall comply with the obligations arising from any national, regional and international legislative or regulatory provision relating to personal data, and in particular arising from Regulation 2016/679/EU of April 27, 2016 (“Personal Data Regulation”), which is applicable to them in their capacity as independent data controller, concerning (a) the processing of their professional contacts, for the purpose of managing their commercial relationship; (b) the processing of any personal data that may be related to the Material(s) and the Services. In this respect, the parties agree that the Material(s) and the Services do not involve any processing of directly identifying data. However, in view of the strict interpretation of the notion of anonymization under the Personal Data Regulation, the parties agree to take the necessary measures to adequately protect any data that could be considered as indirectly identifying data.
Pursuant to (b) of this Section 21, the parties undertake to:
i. include any processing in their record of processing activities which is kept under their responsibility, indicating in particular the purpose and duration of the processing, its nature and purpose, the type of personal data and the categories of data subjects in accordance with the Personal Data Regulation;
ii. if applicable, in view of the high level of pseudonymization applied by Genoskin, comply with any request from a given person to exercise its rights of access, modification, erasure, if applicable, limitation, opposition or portability, or even withdrawal of consent;
iii. inform the other party in writing and without delay of any breach of personal data that it may have discovered during the term of these Terms;
iv. take all useful technical and organizational precautions, in particular with regard to the nature of the personal data that each party processes respectively and the risks presented by the processing, in order to secure maximum security and confidentiality of this data and in particular to prevent it from being deformed, damaged and, above all, accessed by unauthorized third parties in any way whatsoever;
v. ensure that the transfer of personal data to a country outside the European Union/EEA is subject to the appropriate safeguards provided for by the Personal Data Regulation.
All provisions of these Terms which by their nature or purpose are intended to survive termination or expiration of these Terms for any reason whatsoever shall remain in effect notwithstanding such expiration or termination.