General Terms and Conditions of Sale
1. Scope of these General Terms and Conditions of Sale
1.1 Anemocyte S.r.l. (“Anemocyte”) shall provide its services and/or its products under the commercial offer above (the “Offer”) in compliance with (i) the terms set forth in the Offer sent by Anemocyte to the Client (as defined in the Offer) and (ii) these General Terms and Conditions of Sale (the “Terms”).
1.2 The “Agreement” between Anemocyte and the Client consists of the Offer, as duly accepted by the Client, and these Terms.
1.3 These Terms expressly exclude any general or special terms of the Client, which shall in no event be binding on Anemocyte, even if Anemocyte does not expressly reject them. In case of conflict between these Terms and the Offer, the Offer shall prevail.
1.4 For the purposes of these Terms:
- “On-Demand Product(s)” shall mean products manufactured or developed by Anemocyte and/or its AMClarity Division based on the Client’s specific instructions, materials, or specifications as better detailed in each Offer;
- “On-Demand Service(s)” shall mean services performed or developed by Anemocyte and/or its AMClarity Division based on the Client’s specific instructions, requirements, or specifications, as further detailed in each Offer;
- “On-Shelf Product(s)” shall mean standardized products manufactured and held in stock by Anemocyte and/or its AMClarity Division and offered for sale under standard specifications.
Unless otherwise expressly provided, the provisions set out herein shall apply to both On-Demand Products and On-Shelf Products (jointly, “Products”), as well as to On-Demand Services and other services performed by Anemocyte as detailed under the Offer (jointly, “Services”).
2. Specific Provisions Applicable to On-Demand Products and On-Demand Services
2.1 In the event the Client gives Anemocyte instructions in order to implement any On-Demand Products and/or perform any On-Demand Services, then Anemocyte – having followed out the instructions – shall not be responsible for the outcome of the On-Demand Product itself nor for the outcome or final result of any On-Demand Services, to the extent related to Client materials or instructions. In no event shall Anemocyte verify the correctness and/or appropriateness of the instructions given by the Client. In addition, it is understood by the parties that in the event the Client provides Anemocyte with any kind of material (such as cells, molecules etc.), Anemocyte shall not be responsible for the consistency and purity of the product implemented nor for the performance or outcome of any On-Demand Services. In no event shall Anemocyte verify the consistency or the purity of the material provided by the Client. However, if Anemocyte finds out the non-conformity of the material provided, it reserves the right to notify in writing such non-conformity to the Client and promptly delivery back the material. Consequently, the Client shall provide Anemocyte with proper material, otherwise the agreement shall be terminated.
2.2 Anemocyte represents and warrants that On-Demand Products and On-Demand Services are implemented and performed in compliance with the technical-guidelines set forth in the Offer. The Client shall notify to Anemocyte any claim concerning any failure of Anemocyte to comply with the technical guidelines described hereto within 30 (thirty) days from the delivery of any On-Demand Products or the supply of any On-Demand Services by sending a registered mail with return receipt. In the event that it is proved and assessed the non-conformity of any On-Demand Products or On-Demand Services with respect to the technical guidelines described hereto, should the non-conformity be due to the exclusive fault of Anemocyte, then Anemocyte shall modify the On-Demand Products and/or re-supply the On-Demand Services in order to comply with the technical guidelines.
2.3 For the avoidance of doubt, the Parties acknowledge and agree that, with respect to both On-Demand Products and On-Demand Services, unless otherwise expressly and unequivocally provided in the relevant Offer, Anemocyte shall be deemed to assume an obligation of means only, and shall not in any manner be considered as undertaking an obligation of result. Furthermore, unless explicitly and specifically stated in the Offer, no fit-for-purpose warranty, performance guarantee, or assurance of achieving any predetermined outcome shall apply to the On-Demand Products or the On-Demand Services.
3. General provisions.
3.1 The Client represents and warrants to use – directly or ensure the use of – the Products purchased from Anemocyte pursuant to the Offer here enclosed only in the exercise of its own business activity. The Client undertakes, also pursuant to article 1381 of the Italian Civil Code, not to – directly or indirectly, including allowing third parties with whom the Client has a contractual relationship in force to (“Third Parties”)– reverse engineer the Products and/or Services’ outcomes or results for the purpose of the production and/or provision of products and/or services similar, in whole or in part, to the Products. The parties agree that any and each breach of the obligations set forth in this article entails the payment of a sum by the Client in favour of Anemocyte, as a penalty, pursuant to article 1382 of the Italian Civil Code, equal to EUR 1.000.000,00 (one million/00), without prejudice in any case to the compensation for the greater damage and Anemocyte’s right to terminate the Agreement pursuant to article 1456 of the Italian Civil Code.
3.2 It is agreed and understood by the parties that in no event shall Anemocyte be responsible vis-à-vis the Client and/or any Third Parties for any failure or delay in fulfilling its obligations due to any unpredictable development result due to particular nature of experiment set up, such as to make Anemocyte unable to perform its obligation in accordance with provision set forth under the Offer.
3.3 Without prejudice to the above, it is agreed and understood by the parties that in no event shall Anemocyte be responsible vis-à-vis the Client and/or any Third Parties for the merchantability or fitness for a particular purpose of the Products and/or Services or with respect to the utility, efficacy or appropriateness of using/exploiting it.
3.4 The parties agree that, to the maximum extent permitted by applicable law and without prejudice to the cases of gross negligence and wilful misconduct, under for no reason and under no circumstances, Anemocyte shall be liable to the Client with respect to:
3.4.1 the Client (or Third Party)’s intended use of Anemocyte’s Products and/or Services, in respect of which Anemocyte makes no express or implied warranties and bears no direct or indirect liability;
3.4.2 any impossibility or prejudice to the Client (or Third Party)’s activity as related to intended use of Anemocyte’s Products, and/or Services, which arise, directly or indirectly, from IP rights claimed by third parties in connection with the related Client (or Third Party)’s production process.
Without prejudice to the foregoing, to the maximum extent permitted by applicable law and without prejudice to the cases of gross negligence and wilful misconduct, Anemocyte’s aggregate liability to the Client shall in no event exceed the total amount of the purchase price paid by the Client under the Agreement.
3.5 It is understood that any risk related or connected with the loss or perishable of the Products shall pass to the Client upon the Products being delivered by Anemocyte, the Client shall be responsible for the storage and preservation of the Product after delivery.
4. Termination of the Agreement in case of On-Demand Products and On-Demand Services
4.1 Anemocyte is entitled, in its sole discretion, to terminate the Agreement for convenience for any reason whatsoever by giving at least 1 (one) month prior written notice to the Client.
4.2 Moreover, Anemocyte is entitled to forthwith terminate the Agreement (a) in case of interruption of the production and/or the performance of the Services, required by the Client, for a period higher than 30 (thirty) days from the request of interruption and (b) in case of insolvency of a milestone by the Client.
4.3 The Client is entitled, in its sole discretion, to terminate the Agreement by giving 60 (sixty) days prior written notice to Anemocyte, it being understood that, in the event of such termination served by the Client, the latter shall pay in favour of Anemocyte the amount due for the activities carried out as well as the raw material purchased by Anemocyte until the termination effective date and an additional fee equal to 50% (fifty per cent) of the value of remaining activities. It remains understood that, in the event that the Client paid in advance the overall price set forth in the Offer, Anemocyte shall return the Client the amount paid by the latter as advance payment net of all the consideration due for the activities carried out as well as the raw material purchased by Anemocyte until the termination effective date as provided for herein.
4.4 In the event of exercise of the right of termination by both parties as provided for in accordance with this Section 4, Anemocyte is entitled to interrupt the completion of the relevant milestone, initiated but not completed, unless differently agreed by the parties at the moment of the exercise of the respective termination right.
4.5 By entering into the Agreement, the Client acknowledges that Anemocyte for performing its obligations needs certain information, material and deliverables and, in general, the cooperation by Client as better detailed in each Offer. It is therefore understood that, in case of failure by the Client to perform the activities and/or transmit the information, material and deliverables necessary to allow Anemocyte to perform the Agreement as better detailed in the Offer (“Term”), Anemocyte (a) reserves the right, at its indisputable discretion, to suspend any activity as per relevant Offer and require in written form to the Client to comply to its obligations within a term of 14 (fourteen) days or the different term indicated therein and (b) shall be entitled to forthwith terminate the Agreement pursuant to article 1454 of the Italian Civil Code, in case of failure by the Client to perform its obligations within the term referred under letter (a). All the foregoing, without prejudice to the right of Anemocyte to receive compensation for damages thus suffered, as well as the amount due for the activities carried out as well as the raw material purchased by Anemocyte until the Term and an additional fee equal to 50% of the value of remaining activities. It remains understood that, in the event that the Client paid in advance the overall price set forth in the Offer, Anemocyte shall return the Client the amount paid by the latter as advance payment net of all the consideration due for the activities carried out as well as the raw material purchased by Anemocyte until the Term as provided for herein.
5. Confidentiality
5.1 Anemocyte and the Client mutually guarantee that its personnel, and the personnel of other parties that may be appointed by them or who may be intended recipients of the Products, will treat any information or any other data (including related to the Products), which they have acquired direct and/or indirect knowledge of during or in connection with any activity relating to the execution of the Agreement, as confidential.
5.2 Anemocyte and the Client undertake – directly and indirectly – (i) to keep the confidential data and information they possess and/or have knowledge of as a result of the Agreement, (ii) not to disclose them in any way and in any form to third parties, except to Third Parties on confidentiality basis no less restrictive than the terms set forth herein, and (iii) not to use them in any capacity for any purposes other than those strictly necessary for the execution of the same Agreement. In light of the above. Anemocyte and the Client shall be responsible for ensuring the proper compliance with the aforementioned confidentiality and secrecy obligations by their respective employees, consultants and/or collaborators, as well as by their respective sub-contractors and the employees, consultants and collaborators of the sub-contractors, and by any other Third Parties to whom confidential data or information may be disclosed or made available in accordance with as a result of or in connection with this Agreement..
5.3 Confidentiality obligations of the parties shall survive for 5 (five) years after the performance or termination of the Agreement for any reason whatsoever, unless differently agreed by the parties.
6. Data Protection
6.1 Anemocyte and the Client acknowledge that they are adequately informed as to the applicable legislation regarding the protection of personal data currently in force, regarding the processing of personal data which may be inherent to the performance of the Agreement, and declare that all such processing of personal data will be carried out in accordance with that legislation.
6.2 Regarding the processing of personal data related to Anemocyte and the Client and necessary to manage the Agreement, Anemocyte and the Client will act, mutually, as data controllers.
7. Intellectual Property Rights
7.1 General provisions
The Client acknowledges that any and all Intellectual Property Rights (as defined below) belong to Anemocyte, which is their full, exclusive and unconditional owner.
For the purposes hereof, “Intellectual Property Rights” (hereinafter also “IPRs”) means any and all rights in and to any and all intellectual property (whether registrable or patentable or not) including, but not limited to, names, trademarks, domain names, trade names, designs, works of authorship, patents for inventions and utility models, processes, trade secrets, software, know-how, sequences and any other intellectual property (i) owned by Anemocyte before the execution of the Agreement and (ii) conceived, developed or acquired by Anemocyte after the commencement of the execution of the Agreement, whether independent of, or in connection with, the activities contemplated under the Agreement.
The Client acknowledges and accepts that the purchase of certain Products may be subject to, and/or incorporate, third-party licensing requirements. In such case, the Client will be informed of such licence requirements in these Terms or during the ordering process. Before an order is completed, the Client must agree to obtain and comply with all required third-party licences.
Where, for the purposes of the execution of this Agreement, the Client supplies Anemocyte with processing materials subject to third-party licences, the Client expressly warrants that it has obtained such licences from the rightful owner and is entitled to provide Anemocyte with such materials.
Anemocyte may, for a period of four (4) years after delivery of the Products or provision of the Services, audit the Client’s compliance with this Agreement. Any audit shall be conducted during normal business hours and in a manner that does not unreasonably interfere with the Client’s operations.
In case of non-compliance, the Client shall indemnify and hold harmless Anemocyte and its affiliates, officers, agents and employees from and against any action, claim or liability, including attorney’s fees and any employee’s claim, under Article 64 of the Italian Industrial Property Code and/or anyway arising out of breach of law and/or the present article 7.
7.2 Specific provisions – On-Demand Products and On-Demand Services
The Client represents, warrants, and covenants that it holds all necessary licences and rights, including but not limited to patent and other intellectual property rights, in all sequences, materials and other items provided to Anemocyte in connection with any Services to be performed by Anemocyte.
The Client agrees to indemnify and hold harmless Anemocyte and its affiliates, officers, agents, subcontractors and employees from and against any action, claim, or liability, including attorney’s fees, arising from (i) any breach of the above warranty, or (ii) any actual or alleged infringement of third-party rights resulting from the materials or instructions provided by the Client.
With the execution of this Agreement, Anemocyte shall supply to the Client only those On-Demand Products, On-Demand Services and direct results of the activities duly paid in full by the Client.
Nothing in this Agreement shall be construed as granting to the Client any licence, right or title over Anemocyte’s IPRs, including but not limited to proprietary tools used, developed or improved in providing the Services, gene synthesis processes, assembly improvements, optimization algorithms, related know-how, or any proprietary software created therefor.
All such IPRs shall at all times remain in the full, exclusive and unconditional ownership or availability of Anemocyte.
The Client acknowledges Anemocyte’s full ownership of the IPRs and undertakes not to file, register or use, anywhere in the world, any intellectual property rights identical or similar to the IPRs.
7.3 Specific provisions – On-Shelf Products
With respect to On-Shelf Products, Anemocyte grants to the Client a non-exclusive, non-transferable and limited licence to use the purchased On-Shelf Products, and the technology embedded therein, solely for the specific purposes expressly indicated in the Offer.
The Client shall not use the On-Shelf Products or any underlying technology for any other purpose, nor reproduce, reverse engineer, decompile or otherwise derive or attempt to derive any component, structure, process or know-how incorporated in the On-Shelf Products, whether directly or through any Third Parties.
The Client acknowledges that this limited licence does not transfer any ownership of IPRs to the Client, and that all IPRs remain the exclusive property of Anemocyte.
8. Force Majeure
8.1 The parties acknowledge and agree that Anemocyte shall not be liable to the Client in the event of delay in performance and/or non-performance, including the case of delayed or failed delivery, whether total or partial, of the Products under these Terms and the Agreement, in the event that the delay in performance and/or non-performance is due to force majeure or an unforeseeable event beyond the reasonable control of Anemocyte or any event which, although foreseeable, could not have been avoided using the normal care, experience and professional diligence of a relevant sector operator. In particular and for the sake of clarity only, in no event Anemocyte shall be liable to the Client for any loss, however defined or calculated, stemming from, by way of example only, the following events or circumstances: (a) compliance with laws and/or ordinances, provisions, regulations, government directives, judicial and/or administrative decisions which – if issued by the competent Italian and/or European authorities and/or international organisations – inhibit, delay or block the delivery of the Products; (b) acts of God, epizootics, epidemics and pandemics, natural disasters, including, by way of example but not limited to, storms, hurricanes, typhoons, tornadoes, blizzards, earthquakes, volcanic activity, landslides, tidal waves, tsunamis, floods, droughts; (c) labour unrest in general, including but not limited to lockouts, strikes, squatting of premises and/or facilities; and (d) economic/financial events, including but not limited to market crashes and economic recessions.
9. Miscellaneous
9.1 Unless otherwise agreed by Anemocyte, delivery dates in the Offer are indicative and not binding.
9.2 These Terms shall prevail over any general or special terms and conditions of the Client, regardless of their form or timing of communication. Any terms or conditions of the Client that differ from, conflict with or supplement these Terms shall be null and void, unless expressly accepted in writing by Anemocyte. No conduct, performance or silence by Anemocyte shall be construed as acceptance of the Client’s terms.
10. General provisions
10.1 The Offer, these Terms, and the Agreement shall be governed by Italian law.
10.2 Any dispute arising therefrom shall be submitted to the exclusive jurisdiction of the Court of Milan.
