Polypeptide Therapeutic Solutions, S.L. (“Curapath”) and Client (as defined in the Order Form) are sometimes each referred to in these Terms and Conditions (“T&C”) as a “Party” and collectively as the “Parties”.
1. DEFINITIONS
“Affiliate” means, with respect to either Client or Curapath, any corporation, company, partnership, joint venture and/or firm which controls, is controlled by or is under common control with Client or Curapath, as the case may be. As used in the definition of Affiliate, “control” means (a) in the case of corporate entities, direct or indirect ownership of more than fifty percent (50%) of the stock or shares having the right to vote for the election of directors (or such lesser percentage that is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction), and (b) in the case of non-corporate entities, the direct or indirect power to manage, direct or cause the direction of the management and policies of the non-corporate entity or the power to elect more than fifty percent (50%) of the members of the governing body of such non-corporate entity.
“Agreement” means the Order Form and these T&C collectively.
“Confidential Information” means any and all non-public scientific, technical, financial, regulatory, or business information, or data or trade secrets in whatever form (written, oral or visual) and whether marked as confidential or not that is (a) furnished or made available by one Party (the “Discloser”) to the other (the “Recipient”) or (b) developed by either Party under this Agreement.
“Force Majeure Event” has the meaning set forth in Section 11.
“Intellectual Property Rights” means any and all patents, patent applications, invention disclosures, trademarks, tradenames, copyrights, licenses, registrations, copyrights, designs, utility models, and any other industrial intellectual property protection or right whatsoever, in any jurisdiction anywhere in the world.
“Order Form” means the Order form, statement of work, quote, proposal or similar to which these T&C are attached or incorporated.
“Product” means the product manufactured by Curapath on Client’s behalf under the Agreement as specified in the Order Form.
2. BASIS OF THE AGREEMENT
This Agreement shall apply between the Parties to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing, and shall govern unless otherwise agreed by the Parties in an applicable Order Form. In the event of any inconsistency between this Agreement and the Order Form, the latter shall prevail.
The acceptance of the Order Form implies acceptance of the terms outlined in this Agreement.
3. DELIVERY
Curapath will select the method of shipment and the carrier to be used, unless otherwise agreed. Unless otherwise agreed, shipment will be F.C.A. (Incoterms 2020) Curapath’s shipping point. Curapath will not be responsible for any loss or damage to the Products following delivery to the carrier. Items damaged during shipment cannot be returned without authorization.
Curapath shall make commercially reasonable efforts to meet estimated delivery dates; however, all such dates are estimates only and subject to Curapath’s availability. If Curapath’s supply of Products is limited, Curapath reserves the right to allocate the available supply among its customers in any manner it deems appropriate, at its sole discretion.
If the Products are not shipped within 30 days after notification has been made to Client that they are ready for shipping for any reason beyond Curapath’s control, Curapath may store the Products at Client’s risk and expense in a warehouse or upon Curapath’s premises, and Client will pay all handling, transportation and storage costs at Curapath’s prevailing storage rates.
4. INSPECTION
The Client shall inspect the Products immediately upon receipt and must provide written notice to Curapath within ten (10) business days of receipt of any claim that the Products shipped are non-conforming.
If the Client receives Product with defects or nonconformities that are not apparent upon initial examination or are discovered after the initial inspection period has passed, Client may reject the non-conforming Product by giving written notice to Curapath within thirty (30) business days of receipt.
If, upon review of the Client’s notice, Curapath determines in its sole discretion that the Product are non-conforming, Curapath shall, as its exclusive obligation and the Client’s sole remedy, either (i) replace such non-conforming Products or (ii) issue a credit or refund in an amount equal to the price paid for the affected Product.
5. PRICES AND PAYMENT
Price: The price of Product will be set forth in the applicable Order Form. Curapath may automatically increase prices under an Order Form to account for changed market conditions such as inflation, materials cost, utilities costs and the cost of labor.
Invoicing: Payment of invoices will be due within thirty (30) days of the date of the invoice. All payments hereunder will be made in Euros.
Curapath reserves the right to invoice the Client the amounts corresponding to the delay in payments due for the sale of Product, applying the legal interest rate plus 3 percentage points. These amounts shall be payable from the moment the Client receives notification for payment.
Taxes: Any use, sales, exercise or value added tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Curapath and Client (other than Curapath’s income tax), will be paid by Client in addition to the prices quoted or invoiced by Curapath. In the event Curapath is required to pay any such tax, fee, or charge, Client will promptly reimburse Curapath for such payment, or in lieu of such payment, Client will provide Curapath at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
6. CONFIDENTIALITY
Confidentiality Obligations: Recipient agrees to (a) keep Discloser’s Confidential Information secure, (b) use it only as necessary to fulfil Agreement obligations, and (c) protect it with at least the same level of care as their own confidential data, (d) reproduce Discloser’s Confidential Information solely to the extent necessary to carry out Recipient’s rights or obligations under this Agreement; and (e) notify Discloser of any unauthorized disclosure of Discloser’s Confidential Information promptly upon becoming aware of such disclosure.
Permitted Disclosures: Disclosure of Confidential Information is allowed to Affiliates, employees, or contractors under a need-to-know basis and confidentiality obligations as stringent as those contained herein. Recipient may also disclose Confidential Information if required by law, with prior notice to Discloser and reasonable steps to limit disclosure.
Exceptions: Confidentiality obligations do not apply if the Confidential Information is (i) publicly available, (ii) already in Recipient’s possession, (iii) lawfully obtained from another source, or (iv) independently developed by Recipient.
Return or Destroy: Upon Agreement termination, Recipient must return or destroy all copies of Discloser’s Confidential Information within 30 days, unless retention of a single backup copy is needed for compliance, which remains protected under confidentiality terms.
7. INTELLECTUAL PROPERTY
Where the Client supplies designs, drawings, and specifications to Curapath to enable it to manufacture non-standard or custom-made Products, the Client warrants that such manufacture will not infringe the Intellectual Property Rights of any third party.
All Intellectual Property Rights in the Product as in any materials, data, documents, methods, processes, technologies, or inventions developed by or on behalf of Curapath shall at all times remain vested in Curapath. The Client shall not acquire any ownership right, interest or title in or to the Confidential Information of Curapath or any Intellectual Property Rights therein or the right to obtain or apply for such rights.
Curapath does not grant any Intellectual Property Rights to the Client.
The Client shall not:
- (i) attempt to reverse engineer the Products;
- (ii) determine their composition or structure;
- (iii) extract or infer any information not expressly disclosed by Curapath;
- (iv) use the Product for any commercial use incorporation or distribution purpose nor make any commercial or other gain from the Product, nor
- (v) file any patent application or otherwise seek to obtain any protection of the Intellectual Property Rights contained in the Product.
8. INDEMNIFICATION
Mutual Indemnification: Each Party (the indemnifying Party) will indemnify, defend and hold harmless the other Party, the other Party’s Affiliates, and such other Party’s and other Party’s Affiliates’ officers, directors, employees, and agents (collectively, as to each Party respectively, its “Indemnitees”) against any and all losses, damages, liabilities and expenses (including reasonable attorneys’ fees and other costs of defense (collectively “Losses”) in connection with any third party suits, claims or demands to the extent such Losses arise out of or relate to (a) indemnifying Party’s breach of this Agreement; or (b) the gross negligence or willful misconduct of indemnifying Party or any of its Indemnitees in performing obligations under this Agreement. Curapath Indemnitees also include Curapath’s subcontractors.
Additional Client Indemnification: Client will also indemnify, defend and hold harmless Curapath and Curapath’s Indemnitees against any and all Losses to the extent such Losses arise out of or relate to the manufacturing, packaging, marketing, distribution, import, use or sale by Client or its Affiliates or their respective permitted sublicensees of the Product or any other deliverables delivered by Client hereunder (including without limitation any claim of infringement of any patent or trademark or the unauthorized use of a trade secret and any product liability claims). Curapath’s duty to indemnify under this Section will not apply to the extent Losses arise or result from a matter for which the Client owes a duty to indemnify under this Section.
Indemnification Process: Each Party must notify the indemnifying Party within thirty (30) days of receipt of any claims made for which the indemnifying Party might owe a duty to indemnify under this Section. The indemnifying Party will have the sole right to defend, negotiate, and settle such claims; provided that neither Party will be bound by any settlement made without its prior written consent (not to be unreasonably withheld). The indemnified Party will be entitled to participate in the defense of such matter and to employ counsel at its expense to assist in such defense. The Party seeking indemnification will provide the indemnifying Party with such information and assistance as the indemnifying Party may reasonably request, at the expense of the indemnifying Party.
9. INSURANCE
Each Party will secure and maintain in full force and effect throughout the term of this Agreement (and for at least two (2) years thereafter for claims made coverage), insurance coverage in amounts sufficient to meet its obligations under this Agreement in accordance with industry standards for similarly situated Parties with financially sound and internationally reputable insurers.
Each Party will at any time upon request by the other Party, promptly provide the other Party with a Certificate of Insurance evidencing coverage.
10. LIMITATION OF LIABILITY
Consequential Damages: Neither party will be liable under any legal theory (whether tort, contract or otherwise) for special, indirect, incidental, consequential or punitive damages arising out of or related to this agreement or the exercise of its rights hereunder, including lost profits, lost data, lost business opportunity, loss of reputation and similar arising from or relating to any breach of this agreement, however caused, even if the party has been advised of the possibility of such damages.
Curapath Limitation of Liability: Notwithstanding anything to the contrary in this agreement, the total liability of Curapath for all losses and damages under or related to this agreement will not exceed the amounts paid by client hereunder in the twelve (12) months preceding the claim giving rise to the liability.
11. WARRANTY
Curapath warrants solely to the Client that the Products will materially conform to Curapath’s published specifications at the time of shipment. This warranty is valid only if the Products are stored and used in accordance with Curapath’s instructions and published specifications.
Except as expressly provided above and to the maximum extent permitted by applicable law, Curapath disclaims all other warranties, express or implied, with respect to the Product including but not limited to any warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party Intellectual Property Rights, whether arising by law, course of dealing, course of performance, usage of trade, or otherwise.
12. TERMINATION
Either Party will have the right to terminate this Agreement or any signed Order Form that are pending by written notice to the other Party, upon the occurrence of any of the following:
- (a) the other Party fails to cure a material breach of this Agreement within thirty (30) days after receiving written notice from the other Party of such breach.
- (b) a Force Majeure event that will, or continues to, prevent performance (in whole or substantial part) of this Agreement or any pending Order Form by the other Party for a period of at least ninety (90) days. In the case of a Force Majeure Event relating solely to a pending Order Form, the right to terminate will be limited to such Order Form; or
- (c) by Curapath at any time without cause upon thirty (30) days prior written notice to Client.
No termination of this Agreement will relieve either Party of any obligation accrued prior to such termination.
Sections 3, 4, 5, 6, 7, 8, 9, 10, 17, 18 and this section 12 will survive the termination of this Agreement, and any other terms intended expressly or by implication to survive termination.
13. FORCE MAJEURE
Except for payment obligations, neither Party will be liable for delays or failures to fulfil Agreement obligations caused by events beyond its control, without such Party’s fault or negligence, including (a) fire, (b) flood, (c) embargo, (d) shortage, (e) epidemic, (f) quarantine, (g) war or act of war (whether war is declared or not), (h) insurrection, (i) riot, (j) civil commotion, (k) strike, (l) act of God, (m) act, omission, or delay in acting, by any governmental authority, or (n) other similar cause; provided, in each case, that such event (i) was beyond the reasonable control of the affected Party, and (ii) by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable.
The affected Party will promptly notify the other in writing, detailing the nature and expected duration of the Force Majeure Event.
14. NON-EXCLUSIVITY
Nothing in this Agreement will be construed to limit Curapath in any way from restrict Curapath from manufacturing, using, offering, marketing, or selling products that are the same as or similar to the Products covered by this Agreement, whether for itself, its Affiliates or any third party, nor from using Curapath’s Intellectual Property Rights or Curapath’s Confidential Information in connection with such Product, provided that Curapath does not breach its confidentiality obligations to Client under this Agreement.
15. INDEPENDENCE
Curapath is acting under this Agreement as an independent contractor. Neither Party will represent itself to be a partner or joint ventures of or with the other Party. Except to the extent required by law, neither Party will make any public statement or release concerning this Agreement or the transactions contemplated by this Agreement or use the other Party’s name in any form of advertising, promotion or publicity, without obtaining the prior written consent of the other Party.
16. MISCELLANEOUS
Entire Agreement. This Agreement constitutes the final, complete, and exclusive agreement between the Parties with respect to the Event, and supersedes all prior and contemporaneous agreements, representations and understandings of the parties with respect to such subject matter.
Severability. In the event any provision of this Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of this Agreement.
Notices. Any notice required or permitted by this Agreement will be in writing and will be sent by registered or certified mail, return receipt requested, by facsimile, or by reputable overnight courier addressed to the other Party at the address shown at the Order Form or at such other address for which such Party gives notice hereunder. Such notice will be deemed to have been given when delivered or, if delivery is not accomplished by some fault of the addressee, when tendered.
Non-waiver. A failure to exercise or delay in exercising any right or remedy in relation to the Agreement shall not constitute a waiver of, or forfeiture of, the relevant right or remedy. The fact of exercising a right or remedy hereunder on a specific occasion or partially shall not prevent that right or remedy from being exercised again or on a later occasion. The waiver of a breach of the Agreement by one Party shall not be understood as a waiver of any subsequent breach.
17. GOVERNING LAW AND JURISDICTION
Governing Law: This Agreement and any disputes arising out of or relating to this Agreement will be governed by, construed and interpreted in accordance with the internal laws of Spain, without regard to any choice of law principle that would require the application of the law of another jurisdiction. The Parties expressly reject any application to this Agreement of (a) the United Nations Convention on Contracts for the International Sale of Goods; and (b) the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended by that certain Protocol, done at Vienna on April 11, 1980.
Jurisdiction Venue: Any legal action or proceeding concerning the validity, interpretation and enforcement of this Agreement, matters arising out of or related to this Agreement or its making, performance or breach, or related matters will be brought exclusively in the courts Valencia (Spain). All Parties consent to the exclusive jurisdiction of those courts and waive any objection to the propriety or convenience of such venues.
18. RESTRICTED USE
Curapath’s Products are, unless otherwise stated, intended for research purposes. The Customer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using Products. In no event shall Products stipulated by Curapath as intended for research and development use be used in a manufacturing process or in manufactured products or the performance of services for a fee or in human subjects. The Products shall in no event be used in medical or clinical applications, unless otherwise expressly stated by Curapath, and Customer is solely liable to ensure compliance with any regulatory requirements related to the Customer’s use of Products.
Not for Resale, Distribution and Export Prohibited. The Customer warrants to Curapath that they will use the product as indicated by Curapath and as permitted by terms above, and further agrees that the Products may not be marketed, distributed, resold or exported for any purpose.
