Terms and conditions of sale to end users and non-appointed distributors of BFlow S.L.
Application and definitions
- BFlow means BFlow S.L. with its registered office located in Cl Campus Vida 0 15706 Santiago de Compostela, Spain, and registered with CIF B70616990, registered in the Commercial Registry of A CORUÑA T 379 , F193, S 8, H SC 50686, I/A 1, and all of its affiliates and subsidiaries
- Unless otherwise agreed by an end user or non-appointed distributor and BFlow in writing, these Terms and Conditions shall apply to all sales and deliveries to end users and non-appointed distributors who have not signed an individual purchase agreement or authorized distributor agreement with BFlow (the end user or non-appointed distributor with whom BFlow is contracting is hereinafter referred to as the “Customer”).
- These Terms and Conditions shall apply to all business transactions between BFlow and the Customer regardless of whether they are referenced in future contracts. Contrary, additional or differing terms and conditions of the Customer shall not apply unless expressly agreed to in writing by BFlow. These Terms and Conditions apply even in the event that BFlow makes a delivery to the Customer without reservations while being aware of the Customer’s conflicting or deviating terms and conditions.
- Amendments and additions to these Terms and Conditions, including to this provision, shall be made in writing.
- Rights accorded to BFlow according to statutory provisions beyond the scope of these Terms and Conditions shall remain unaffected.
- For the purpose of these Terms and Conditions, ‘in writing’ is also defined as: by written message, e-mail, the Internet, or other electronic media.
Product offering and modification
BFlow has the right, from time to time, to add, modify or discontinue any product offering. Offers or proposals for contracting made by electronic means shall be valid for the period fixed by BFlow or, otherwise, for as long as they remain accessible to the Customer.
The Customer shall purchase products from BFlow in its own name and for its own account.
Basic customer responsibilities
The Customer agrees to:
- Provide correct information on all purchase orders of products, including complete product numbers, options, quantities and any special instructions. The Customer assumes sole and absolute liability for any failure, by the Customer, to provide complete and accurate information when ordering products.
- Customer guarantees the accuracy, completeness and reliability of the Customer Information and Customer Materials provided to BFlow, even if this has been obtained from third parties.
- Any additional costs and/or damage caused by a delay in the provision of the Services as result of the Customer’s failure to timely provide BFlow with the requested Customer Information, Customer Materials and related documentation will be borne by the Customer.
- If BFlow requires an advance payment or requires Customer Information to be made available by the Customer in order to execute the Agreement, term(s) for the completion of the delivery will not take effect until the advance payment has been made in full or until all Customer Information has been made available by the Customer.
- Indemnify and hold harmless BFlow and its legal successors and assigns from and against all suits, losses, claims, liabilities, costs and expenses (including attorney fees) that BFlow may sustain or incur as a direct result of any claim against BFlow based upon breach of contract, breach of warranty, strict liability in tort or any other theory of law brought by the Customer’s officers, agents, employees, legal successors and assigns, by the Customer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, if and to the extent directly arising out of the Customer’s breach of its obligations under these Terms and Conditions.
- Promptly disclose to BFlow and, upon request by BFlow, grant BFlow a non-exclusive, royalty-free license to make, use and sell worldwide any improvement of BFlow technology developed by the Customer; provided that nothing in this provision shall be construed as granting the Customer any right, title or interest (whether direct or indirect) in or any right or license to amend or develop any BFlow ́s technology.
- Pay any and all taxes, duties, imposts, excises, fees, charges, costs and expenses of any type or character whatsoever, accruing, incurred, imposed or assessed in connection with or relating, in any manner whatsoever, to the Customer’s purchase, importation, transportation, storage, use, distribution or resale, of BFlow products.
Offer and acceptance
- All offers are subject to acknowledgement and non-binding. No contract is created unless and until acknowledged by BFlow, either by written acknowledgment or by dispatch of the products and any provision otherwise, whether contained in any written communication by the Customer or otherwise, is expressly excluded.
- Analytical reports and other descriptions of products in certificates of analysis, catalogs, technical data sheets or other provided product documentation are only approximate unless explicitly referred to as binding. They shall not constitute any agreement or warranty of any characteristics of the products unless a director of BFlow has expressly qualified a description of a product as warranty of agreement of certain characteristics and so notified the Customer in writing.
- BFlow reserves all rights of ownership in all intellectual property rights in all offering materials. Such materials shall not be disclosed to any third parties unless otherwise provided in writing between BFlow and the Customer.
- Purchase orders are non-binding on BFlow. The Customer is bound to its purchase order for two weeks. The silence of BFlow with regard to offers, purchase orders, requests or other declarations of the Customer shall not imply consent or agreement unless expressly agreed otherwise in writing. In individual cases, the purchase order will be confirmed by BFlow by written acknowledgement. Any acknowledgement of purchase order created electronically which does not include a signature or name shall be deemed to constitute written form. Where the acknowledgement of purchase order contains obvious mistakes or clerical or calculation errors, it shall not be binding on BFlow.
- If the contract is unilaterally annulled by the Customer or a purchase order or partial purchase order unilaterally cancelled by the Customer, the Customer shall reimburse BFlow all costs resulting from such annulment or cancellation of contract or purchase order, particularly cancellation and rescission costs charged to BFlow by its suppliers, costs for the purchase of goods which may not be returned and all other costs and expenses which BFlow incurred in connection with the execution and the termination of the contract, inter alia, legal fees and costs of transport.
Scope of delivery / Terms of delivery
- The delivery times referred to in the order, the offer or the Agreement shall be regarded as deadlines.
- For the scope of delivery, the written acknowledgement of BFlow (or purchase order of the Customer if no acknowledgement is provided) is authoritative. Changes to the scope of delivery shall not be effective unless confirmed in writing by BFlow. BFlow reserves the right to make alterations to the purity or specifications of the products to the extent such alterations are not significant.
- BFlow is entitled to make partial deliveries in order to perform its contractual obligations unless partial delivery is not of any interest to the Customer and the Customer has referred to this fact in its purchase order.
- Unless otherwise separately agreed by the parties, BFlow has the right, in its discretion, to determine the method of shipment, i.e., delivery can be made by air freight, train, ship or road transport.
- All deliveries are made with a site specified by BFlow. BFlow reserves the right to charge the Customer for carriage and freight.
- Return of the products and a corresponding credit shall only be possible after prior examination by BFlow and the Customer must comply with all instructions of BFlow with regard to the return of goods. This applies, in particular, to statutory provisions, as applicable, with regard to the delivery and packaging of hazardous goods.
- All delivery obligations of BFlow are subject to the reservation “while stocks last.” BFlow is therefore entitled to terminate the contract when stocks available to BFlow are exhausted. If stocks are only partially exhausted and the entire request of goods as described in the purchase order of the Customer cannot be satisfied, BFlow is entitled to distribute the available stocks at its reasonable discretion to one or all customers. If BFlow can only satisfy part of the Customer’s request for goods as described in the purchase order, the Customer is entitled to cancel the purchase order.
- Agreements on delivery periods and dates shall be specified in the purchase order acknowledgement. All delivery periods and dates are non-binding unless expressly referred to as binding.
- The delivery period shall commence at the time of dispatch of the acknowledgement of purchase order by BFlow (or acceptance of the purchase order if no acknowledgement is provided). In any case, the delivery period shall not commence before the Customer has furnished all documents, permits, approvals, consents and releases to be provided by it, before all technical questions have been clarified. Compliance with the delivery period is subject to timely and proper compliance with all other obligations by the Customer.
- The delivery period shall be deemed satisfied if the products have left the facility or BFlow has notified its readiness to dispatch. Delivery is subject to timely and proper delivery to BFlow by its own suppliers; otherwise BFlow is entitled to terminate the contract.
- In the event of any delay in delivery, the Customer shall be entitled to terminate the contract after notifying BFlow of such delay and ten business days in which BFlow can cure the otherwise late delivery. BFlow shall not be liable for any claims for damages of the Customer for late or delayed delivery.
Prices and payment
- Unless fixed prices have expressly been agreed or unless otherwise agreed in writing, the Customer shall purchase the products at BFlow’s list price in effect on date of purchase order acknowledgement (or date of purchase order if no acknowledgement is provided) as reflected on BFlow’s online shop (meter tienda online). BFlow has the right to change the list prices of its products from time to time, without notice to the Customer.
- Unless otherwise agreed in writing, the purchase price shall be paid the date the order is submitted.
Storage, handling and use of the products by customer
- BFlow ́s products are intended to be used for the purposes of laboratory research and may not be used for any other purpose unless otherwise indicated on the product label, in the catalogues of BFlow or in other documents provided to the Customer. The Customer is obliged to inform its customers, as applicable, of such limitations.
- BFlow is not obliged to examine the products for their safety and effectiveness when contained or used in food, pharmaceutical products, medical devices, or cosmetics, or for commercial or other applications, unless otherwise declared in the documents provided by BFlow, regardless of the compliance of the applicable regulations by BFlow.
- Customer acknowledges that it must, properly test, use and distribute the products purchased from BFlow and/or any and all materials manufactured by using products purchased from BFlow. It is the responsibility of the Customer to examine existing risks and dangers and to carry out any further research (if necessary) in order to become aware of the dangers that may arise from the use of products purchased from BFlow. The Customer shall warn its support staff (such as transport workers) against the risks and dangers that may be related to the storage, use or handling of the products.
- The Customer shall verify the indications of content made by BFlow if the products purchased from BFlow are to be repacked, relabeled or used as starting materials or components for other products.
- Delivered products shall be accepted by the Customer regardless of any claims for defects if the defects are insignificant.
The Customer shall immediately inform BFlow if it becomes aware of any accidents or incidents in connection with the products which result in personal injuries or damages to property; the Customer is obliged to fully cooperate with BFlow in order to clarify and identify the cause for such accidents or incidents. It shall provide BFlow with all explanations, reports and tests which have been made or carried out by the Customer or which have been made available to the Customer by third parties. The provision of such information to and the examination of the same by BFlow do not give rise to liability of BFlow for such accidents or incidents.
Claims for defect
- The rights of the Customer with regard to defects shall be subject to the Customer examining the delivered products upon receipt and notifying BFlow in writing of any defects no later than two weeks after receipt of the products. The Customer shall describe the defects in writing. Claims must be complete, justified and as specific as possible. The products subject to a claim must be returned to the company in their original packaging.
- In the event of defects in the products, BFlow shall be entitled, in its sole discretion, to perform subsequently by remedying the defect or by delivering a defect-free product. The expenses necessary for the subsequent performance shall be borne by BFlow in as far as these expenses are not increased as a result of the products being taken to a location other than the delivery address. Labor and material costs that the Customer claims in this regard shall be calculated at cost.
- If BFlow is not willing or able to perform subsequently, the Customer shall be entitled to terminate the contract. The same shall apply if the subsequent performance fails, if the Customer cannot be reasonably expected to accept it or if it is delayed beyond reasonable deadlines for reasons for which BFlow can be held responsible. The right of the Customer to terminate the contract shall be excluded if:
- The Customer is unable to return the defective products and this inability is not due to the fact that the return of the products is imposible due to the nature of the product or reasons for which BFlow is responsible or
- the defect only showed during the processing or conversion of the products.
- In the event of defects in products that BFlow sources from third-party suppliers and which form an essential part of BFlow products, the Customer shall only be entitled to demand assignment of the claims that BFlow is entitled to assert against the third-party supplier.
Only in the event of failure of an assigned claim by BFlow against a third-party supplier shall the Customer be entitled to assert claims for defect against BFlow.
- In the event of a violation of any intellectual property rights, of a third party by the delivered products, BFlow shall in its sole discretion and at its sole cost alter or exchange the products in a manner that does not violate any third party rights while the products continue to fulfill the contractually agreed function. Alternatively, BFlow shall provide the right of use to the Customer by entering into a license agreement. If BFlow fails in doing so within a reasonable period of time, the Customer is entitled to terminate the contract. Under the conditions set forth above, BFlow shall also be entitled to terminate the contract.
- The obligations set in these Terms and Conditions shall only exist if:
- The Customer immediately informs BFlow of any asserted violation of intellectual property rights;
- the Customer reasonably supports BFlow in defending the asserted claims and in allowing BFlow the measures to modify the product.
- all measures of defense, including out-of-court settlement, shall remain reserved to BFlow;
- the defect of title does not result from an instruction of the Customer; and
- the violation of right was not caused by the fact that the Customer has modified the delivered products without authorization or used them in a manner in breach of the contract.
- Notwithstanding any provision in these Terms and Conditions to the contrary, the period of limitation for claims for defects by the Customer shall be three months from the date of delivery. It shall also apply to claims in tort which are based on a defect of the products. The period of limitation begins with the delivery of the products. A statement by BFlow concerning a claim asserted by the Customer based on a defect is not to be deemed an entry into negotiations concerning the claim or the circumstances giving rise to the claim if the claim is fully denied by BFlow.
Liability of BFlow
- BFlow shall not in any event be liable for incidental, indirect, consequential or special damages of any kind resulting from any use or failure of the products, even if BFlow has been advised of the possibility of such damage including, without limitation, liability for loss of use, loss of work in progress, down time, loss of revenue, profits or goodwill, failure to realize savings, loss of products of customer or other use or any liability of customer to a third party on account of such loss, or for any labor or any other expense, damage or loss occasioned by such product including personal injury, death or property damage unless such personal injury or death is caused by BFlow ́s negligence.
- Save as expressly provided in these Terms and Conditions, BFlow makes no warranties or representations express or implied, whether by statute or otherwise including any warranties of merchantability satisfactory quality or fitness for a particular purpose with respect to any product. All such warranties are expressly disclaimed and excluded to the maximum extent permitted by applicable law. In the event of any resale by Customer, the liability of BFlow shall not be expanded, modified or otherwise altered by any warranty offered by the Customer for the products.
- BFlow ́s sole and exclusive liability and Customer’s exclusive remedy with respect to products proved to BFlow ́s reasonable satisfaction to be defective or nonconforming shall be repair or replacement of such products without charge or refund of the purchase price, in BFlow ́s sole discretion, upon the return of such products.
Retention of Title
- Until full payment of all outstanding claims of BFlow resulting from the business relationship with the Customer, BFlow shall retain title to the delivered products. The Customer is obliged to handle the products subject to retention of title with due care. In particular, the Customer is obliged to sufficiently insure the products at their replacement value against fire, water and theft at its sole cost.
- In the event of default in payment by the Customer, BFlow shall be entitled, without prejudice to its other rights, to take back the products subject to retention of title and, after timely warning, be entitled to use the products subject to retention of title elsewhere for the purpose of satisfying its due claims against the Customer. In addition, BFlow shall, after expiry of a reasonable deadline, be entitled to terminate the contract. The Customer shall grant BFlow immediate access to the products subject to retention of title and shall surrender the products.
- The processing or conversion of the products subject to retention of title by the Customer shall always be performed on behalf of BFlow. The Customer’s contingent right to the products subject to retention of title is continued with regard to the processed or converted goods. If the products are processed together with other items not belonging to BFlow, BFlow shall be entitled to shared ownership in the new items in proportion of the value of the delivered products to the value of the other processed items at the time of processing. As regards the items created by processing or conversion, the same conditions shall apply as for the products subject to retention of title.
- Upon the Customer’s request, BFlow may at its discretion release specified products from its retention of title rights to the extent that the realizable value of such products exceeds the claims of BFlow resulting from the business relationship with the Customer by more than twenty percent (20%). For the purposes of valuation, the invoiced value of the products subject to retention of title and the nominal value of the claims shall be authoritative.
- Customer acknowledges and agrees that use of Biomaterial-based Products shall be explicitly limited to internal laboratory research use only.
Patents and Copyrights
The Customer agrees that it will not, directly or indirectly, apply for, take out, maintain, or otherwise acquire any patents, utility models, registered designs or copyrights (or any similar registrable intellectual property rights) in any country, on the basis of information obtained by the Customer from BFlow (or any of BFlow ́s affiliates).
At the Customer’s request, BFlow may, at its discretion, furnish technical assistance and information with respect to possible applications and technical specifications of its product free of cost unless fees have been agreed in the individual case. By providing advice and information BFlow does not assume any warranty, express or implied, for technical specifications, use, selection or suitability of the products.
Compliance with laws
The Customer shall conduct its operations in compliance with all applicable laws and regulations of all jurisdictions having contact with the transactions contemplated by these Terms and Conditions. The Customer will, without limitation, obtain and maintain, at the Customer’s expense, all licenses, permits, registrations, authorizations, certificates, consents, waivers, receipts, qualifications, clearances and approvals of any type or character whatsoever (whether public or private) as needed to authorize, without limitation:
- The parties’ adherence to these Terms and Conditions and performance hereunder; and
- the Customer’s import, storage, use, distribution, marketing, transportation and sale of the products.
- The Customer acknowledges that the products may be subject to export and economic sanctions restrictions of the European Union (“EU”), the United Kingdom, U.S. and other countries (“Export Regulations”). The Customer represents and warrants that it will not use, transfer, release, export or reexport or take any action that could result in the diversion of any BFlow products or items containing or incorporating any BFlow products in violation of applicable Export Regulations. The Customer shall screen parties to export transactions against applicable sanctions and denial lists and inform BFlow if any proposed transaction involves parties on those lists or sanctioned destinations. The Customer shall obtain any approvals that may be required.
- The Customer is prohibited from selling or providing goods of BFlow to any third party, without authorization from BFlow.
- Breach of this section will entitle BFlow immediately to terminate the purchase contract.
No delay on the part of BFlow in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by BFlow of any right or remedy shall preclude such party from any further exercise of the right or remedy, or the exercise of any other right or remedy.
- If BFlow is prevented by force majeure from performing its contractual obligations, from delivering the goods, BFlow will be released from its obligation to perform for the duration of the impediment and for a reasonable start-up period without being liable towards the Customer for damages. The same applies if the performance of its obligations by BFlow is unreasonably impeded or becomes temporarily impossible because of unforeseeable circumstances for which BFlow is not responsible. Such causes include, but are not limited to actions of the elements, including floods and other natural disasters, fires, explosions, lockouts, strikes, wars, riots, civil commotion, epidemic, pandemic, embargoes, failure to obtain export licenses or import authorizations, transportation delays and acts of government, energy shortfalls, suppliers’ delivery problems or substantial interruptions of operations. BFlow shall promptly notify the Customer of such interference, including, without limitation, a detailed description thereof, the date of commencement of such interference and the estimated duration thereof.
- BFlow shall be entitled to terminate the contract if such interference persists for more than ninety days and BFlow has no longer an interest in performance of the contract due to such interference. After expiration of such period, at the Customer’s request, BFlow shall declare whether it intends to exercise its rescission right or deliver the products within a reasonable period of time.
- In no event shall BFlow be liable to the Customer for any claims, damages, costs or expenses arising out of or related to BFlow ́s inability to timely ship products or fulfill purchase orders due to a force majeure event.
The Customer agrees for itself and its employees, agents and representatives that the Customer shall not disclose to any third party and shall maintain as confidential, any and all confidential information provided to the Customer by BFlow. Such confidential information shall include, without limitation, information concerning BFlow ́s or its affiliates’ business, finances, proposed products, product development, marketing and/or sales plans, contracts, these Terms and Conditions, business or operational know-how and any other information deemed confidential by BFlow.
- The captions in these Terms and Conditions are for convenience only and do not affect the interpretation of these Terms and Conditions.
- Place of performance for all obligations of the Customer and BFlow is the place of business of BFlow.
- The legal relationship between the Customer and BFlow shall be governed by and construed in accordance with the laws of Spain, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- The legal venue for all disputes arising from the business relationship between BFlow and the Customer is the place of business of BFlow. BFlow shall also be entitled to bring legal actions at the place of business of the Customer or any other applicable and permissible legal venue.
- The Customer shall pay BFlow all damages, costs and expenses (including reasonable attorney’s fees) incurred by BFlow in obtaining injunctive or other relief for the enforcement of any provision of these Terms and Conditions.
- If any provision of these Terms and Conditions should be or become wholly or partially void, ineffective, or unenforceable, the validity, effectiveness and enforceability of the other provisions of these Terms and Conditions shall not be affected thereby. Any such void, ineffective or unenforceable provision shall be deemed replaced by such valid, effective, and enforceable provision as comes closest to the economic intent and purpose of the void, ineffective or unenforceable provision.