Terms of Sale
1. PAYMENT TERMS.
1.1. Fees. Except as otherwise set forth herein or separately agreed to in a Quotation, RNAConnect will invoice Customer, and Customer will pay such invoice upon receipt, the applicable purchase price set forth in the applicable Quotation for the product(s) set forth therein (each, a “Product,” and such amount, the “Product Purchase Fee”). Customer will pay all amounts in United States Dollars, to the bank account set forth in the Quotation or as otherwise specified therein.
1.2. Taxes. All Product Price Fees are exclusive of any sales, use, or excise tax, duty, custom, tariff, or any other similar tax or charge of any kind imposed by any governmental authority or quasi-governmental authority on any amounts payable by Customer (collectively, “Taxes”). Customer shall be responsible for all such taxes and charges; provided, Customer shall not be responsible for any taxes imposed on, or with respect to, RNAConnect’s income, revenues, gross receipts, personal or real property, or other assets. RNAConnect may not determine exact Taxes until immediately prior to shipment of the applicable Product.
1.3. Past-Due Payments. Overdue payments shall be subject to finance charges of the lower of 1.5% per month or the maximum rate allowed under applicable law. Customer will reimburse RNAConnect for all costs incurred in collecting any late payments, including without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law, RNAConnect may, without notice to Customer, delay or postpone delivery of Products and may, at its option, change the terms of payment with respect to any undelivered Products.
1.4. No Set-Offs. Except as otherwise agreed between the parties in writing, Customer shall not withhold payment of any amounts due and payable hereunder by reason of any set-off of any claim or dispute with RNAConnect.
2. DELIVERY AND PERFORMANCE.
2.1. Shipment and Delivery. Unless otherwise set forth in the Quotation, (a) RNAConnect will deliver the Product(s) to US domestic Customer FCA and ex-US-based Customer as FOB (as defined in Incoterms 2020); (b) title to the Product(s) shall pass to Customer upon arrival at the destination; and (c) delivery dates provided by RNAConnect are estimates only, are non-binding, and time of delivery is not of the essence. RNAConnect shall not be liable for any delays, loss or damage in transit. For clarity, Customer will be solely responsible for all shipping-related costs and expenses.
2.2. Partial Shipment. RNAConnect may, in its sole discretion, make partial shipments of Products and invoice immediately therefor. Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s order.
2.3. Delivery Terms. With respect to certain Products, RNAConnect reserves the right to (a) require the purchase of entire lots; and (b) allocate supply, to the extent such allocation is deemed necessary by RNAConnect, among any or all customers (including RNAConnect’s affiliates and distributors) at its sole discretion, without liability for any failure of performance that may result therefrom.
2.4. Customer Inspection. Customer shall inspect Products no later than ten (10) days after receipt (the “Inspection Period”). Customer will be deemed to have accepted the received Products unless it notifies RNAConnect in writing of any defects or nonconforming products during the Inspection Period, furnishing evidence or other documentation if required.
3. USE OF PRODUCTS
3.1. Use Restrictions. Products are for research purposes only and not for use in any human subjects. Customer represents and warrants that Customer shall use all Products in strict compliance with this Agreement and will comply with all instructions, limitations, specifications, use statements or conditions of use made available by RNAConnect, including but not limited to product data, product information, safety data sheets, limited use information and labeling (collectively, “Documentation”).
3.2. Acknowledgments. Customer acknowledges that Products are not tested for safety and efficacy in food, drug, medical device, cosmetic, COMMERCIAL or any other use, unless otherwise explicitly stated in the Documentation. Customer is solely responsible for (a) compliance with all applicable regulatory requirements and generally accepted industry standards, and (b) conducting all necessary testing and verification of the Product(s), including for fitness for the intended purpose.
4. WARRANTIES; DISCLAIMERS.
4.1. Limited Warranty. Subject to the terms and conditions of this Agreement, RNAConnect warrants that Products, upon delivery until one month past the expiration date affixed to the Product (which will be at least three months from the Purchase date), will conform substantially to the specifications published in the Documentation. If Customer believes there has been a breach of the foregoing warranty, Customer will notify RNAConnect during the Inspection Period. If RNAConnect independently verifies that a failure of the foregoing warranty exists and is not attributable to Customer’s act or omission, such failure shall be deemed a “Defect” and subject to the applicable remedies set forth in this Section 4.
4.2. Defective Products. In the event of any Defect, RNAConnect will, at its sole option and liability, (a) provide replacement Products for those affected by the applicable Defect or (b) grant Customer a refund, as described below. RNAConnect will bear the cost of freight and insurance for shipping replacement Products to Customer. If RNAConnect opts to grant a refund for a Defect, it will refund the amounts actually paid by Customer for the Product Purchase Fee for the affected Product, which may be a pro-rated amount based on the total number of Products purchased under the applicable Quotation.
4.3. Exclusive Remedy. THE REMEDY CHOSEN BY RNACONNECT UNDER SECTION 4.1 (RESPECTIVELY AND AS APPLICABLE TO THE AFFECTED PRODUCT) IS CUSTOMER’S EXCLUSIVE REMEDY, AND RNACONNECT’S SOLE LIABILITY, UNDER THIS AGREEMENT WITH RESPECT TO A BREACH OF WARRANTY CONCERNING ANY PRODUCT.
4.4. Disclaimer. EXCEPT AS SET FORTH IN SECTION 4.1, THE PRODUCTS, DOCUMENTATION, AND ANYTHING ELSE PROVIDED IN CONNECTION WITH THE PRODUCTS UNDER THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. RNACONNECT HEREBY DISCLAIMS (ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
5. PROPRIETARY RIGHTS.
5.1. RNAConnect Rights. Except as expressly granted herein, RNAConnect does not grant any intellectual property or other proprietary right or license to Customer, and all of the intellectual property rights in the Products remain with RNAConnect (and its licensors, as applicable).
5.2. Feedback. To the extent Customer provides RNAConnect with any suggestions, ideas, enhancement requests, feedback, recommendations, or information related to the Products and their performance (“Feedback”), Customer hereby assigns all rights, title, and interests in and to such Feedback to RNAConnect.
6. INDEMNIFICATION. Customer will (a) defend RNAConnect, its affiliates, and its and their officers, directors, agents, employees, and representatives (the “RNAConnect Indemnitees”) against any claim by an unaffiliated third party arising from any breach of this Agreement, gross negligence, willful misconduct, or violation of applicable law by Customer or any Customer Indemnitee; and (b) indemnify the RNAConnect Indemnitees for settlements, liabilities, losses, and expenses, including reasonable attorneys’ fees (in each case, only to the extent payable to unaffiliated third parties). The foregoing obligation shall not apply to the extent that any such claim arises from the gross negligence or willful misconduct of any RNAConnect Indemnitee.
7. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL RNACONNECT (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR RELIANCE DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT, OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, COST OF COVER, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF RNACONNECT (OR ITS LICENSORS OR SUPPLIERS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) THE TOTAL LIABILITY OF RNACONNECT HEREUNDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE PRODUCT PURCHASE PRICE ACTUALLY PAID OR PAYABLE TO RNACONNECT HEREUNDER FOR THE PARTICULAR PRODUCT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. RNACONNECT HEREBY EXPRESSLY DISCLAIMS (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS OR IMPLIED, THAT RESULTS FROM USE OF THE PRODUCT WILL BE ACCURATE, VALID OR COMPLETE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY CLAIM OF LIABILITY THAT RESULTS FROM USE OF THE PRODUCT ARE INACCURATE, INVALID OR INCOMPLETE
8. TERMINATION. Customer’s obligation to purchase the applicable Product(s) set forth in a Quotation becomes effective on the Effective Date. If a Product is not delivered pursuant to Section 2, this Agreement will automatically terminate with that particular Product. Except as set forth in this Section 8, this Agreement is not terminable by either party, except that certain obligations expire in accordance with their own terms, as set forth herein, including without limitation in the Quotation.
9. FORCE MAJEURE. Neither party will be liable to the other, or considered in breach, for delays or defaults in its performance (except for its payment obligations) due to causes beyond its reasonable control, including acts of God or government; war, terrorism, fire or explosion; flood; extreme weather; epidemic; riots; embargoes; viruses (including COVID-19); technology attacks; labor disturbances; failure or unavailability of the Internet, telecommunications, transportation, utilities or suppliers
10. MISCELLANEOUS.
10.1. No Waiver. No waiver by RNAConnect of any provisions of the Agreement is effective unless explicitly set forth in writing. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement operates, or may be construed, as a waiver thereof.
10.2. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under the Agreement without RNAConnect’s prior written consent. Any purported assignment or delegation in violation hereof is null and void. No assignment or delegation relieves Customer of any of its obligations hereunder.
10.3. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
10.4. No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.
10.5. Publicity and Use of Name. Customer shall not, without the prior written consent of RNAConnect, (a) refer to RNAConnect, its affiliates, Products or Services in any marketing, promotion or other publicity material, whether written or in electronic form, or (b) use proprietary brand names, trademarks, trade names, logos and other intellectual property owned by RNAConnect or one of its affiliates.
10.6. Governing Law and Venue. All matters arising out of or relating to the Agreement are governed by and construed in accordance with the laws of Connecticut without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to the Agreement shall be instituted in courts located in Hartford, Connecticut, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
10.7. Notices. Except if otherwise agreed upon by the parties, any notices required hereunder shall be made in writing and sent by courier service with tracking or registered or certified mail to the other party at its registered office or principal place of business or such other address as indicated by the receiving party.
10.8. Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10.9. Survival. Upon any termination of this Agreement, the following provision, as well as all remedies for any breach hereof, shall survive: Sections 1, 3, 4, 6, 7, and this Section 10.
10.10. Amendment and Modification. This Agreement may be updated by RNAConnect from time to time. Any other amendment or modification will be effective only upon agreement of the parties in a writing executed by duly authorized representatives.
10.11. Data Protection. RNAConnect will request, process and use personal data (e.g., contact name and business addresses) from Customer to fulfill its obligations under the Agreement and for the continuing relationship management with Customer. RNAConnect’s processing activities shall be governed by its privacy policy posted at www.rnaconnect.com.