Terms & Conditions
- GENERAL TERMS AND ACCEPTANCE
These terms and conditions (the “Terms”) apply to all products purchased by Customer and may not be altered, supplemented, or amended by Customer through the use of any other document(s). By purchasing products from an AllCells ordering site, or approving and delivering an AllCells’ quote or sales order along with a guarantee of payment (an “Order”), Customer agrees to be bound by these Terms, as such Terms may be updated and amended from time to time. Any attempt to alter, supplement, or amend these Terms, or to enter an Order for products that is subject to altered or additional and conditions, will be null and void, unless otherwise agreed to in a written document signed by both Customer and AllCells.
- PRICES, TAX, DELIVERY CHARGES
AllCells may change pricing for products and services at any time without notice. AllCells reserves the right to cancel any Order placed based on incorrect pricing or availability information. For clinical grade products, pricing is subject to the terms stipulated and agreed upon in the Supply Agreement. Sales tax will be included where applicable. If any federal, state, or local tax currently or in the future is levied on AllCells in a jurisdiction where AllCells or Customer does business, and such tax relates to the Products or business transactions, AllCells reserves the right to adjust the net cost of the Products or separately invoice the applicable tax liability in such jurisdiction.
- ORDER FULFILLMENT POLICIES
Quotes are not binding upon either party until AllCells delivers the final sales order to Customer. AllCells’ issuance of a sales order shall represent the Customer’s irrevocable commitment to pay for such Order. AllCells will not schedule any collection or ship any Order until guarantee of payment is provided. Customer acknowledges that there are lead times associated with the collection, processing and fulfillment of Orders. At all times, AllCells may, in its sole discretion, change or modify conditions of product collection, processing, manufacturing, packaging or labeling without providing notice to Customer, unless specific processing requirements are part of a sales order, or a separate valid, written, executed agreement between Customer and AllCells. For clinical grade products, Customer acknowledges that there are minimum lead times associated with the scheduling, collection, processing and fulfillment of Orders. Any requests by Customer for changes or modifications of conditions of donor requirements, collection, processing, manufacturing, packaging or labeling will be considered changes to the product description and must be managed in accordance with the terms of the Quality Agreement, if applicable. Customers may request a specific donor for an Order. AllCells cannot guarantee that a requested donor will be available. In the event that a research grade product Order cannot be fulfilled with the requested donor due to lack of availability, AllCells will use commercially reasonable efforts to find a substitute that meets Customer’s requirements. Customer may be billed for additional costs incurred for scheduling a specific donor or costs incurred leading up to the collection of product from said donor. Customer may be eligible to receive a refund for any prepaid reservation fees if the requested donor is unavailable. For clinical grade products, unavailability or ineligibility of requested donor will result in the use of the back-up donor. Back-up donor unavailability or ineligibility will result in the rescheduling of Product delivery, subject to standard lead times. AllCells is not liable for incomplete Orders caused by circumstances beyond AllCells’ control. In the event that AllCells is unable to fulfill an order due to donor or collection issues, AllCells will promptly notify Customer of such circumstances. Customer and AllCells will promptly work together in good faith to reschedule or modify the Order or resolve payment or credit arrangements, as applicable, for any unfulfilled Orders. A refund or partial refund from AllCells for any or prepayments for the terminated portion of the Order is the sole and exclusive remedy for AllCells’ inability to fulfill or an Order due to a Force Majeure Event (as described below) or donor collection issues.
- CHANGE ORDERS, CANCELLATION, and CHANGE FEES
Once AllCells has issued a sales order, any subsequent requests by Customer to change, modify or cancel such Order will be deemed a Change Order. A “Change Order” includes, without limitation, any of the following Customer requests to: cancel an Order, reschedule, modify donor specifications, expand donor testing prior to original collection date, collection volume, collection date/time, collection requirements, processing requirements, Product Specifications, packaging, labeling, or shipping. Each Change Order will be subject to a separate minimum fee of no less than twenty percent (20%) of the original Order amount (the “Change Fee”). The Change Fee for cancellations is one-hundred percent (100%) of the Order. Customer agrees to pay in full, without warranty or requirement to meet any release criteria or standard quality attribute for Custom products. Custom products are any products that are processed in accordance with the Customer’s specific requirements that are materially different from AllCells’ standard processing and have the potential to impact the quality of the product. All Change Orders must be requested in writing and approved in writing by AllCells. AllCells does not guarantee that Change Orders can be accommodated. In some cases, a new Quote and Order may be required, including the corresponding Change Fee(s). For all clinical grade Products, change management requirements are also subject to the terms of the Quality Agreement, if applicable.
- SHIPPING
(a) Domestic Shipping. Products are shipped F.O.B. shipping point, freight is prepaid and added to the invoice. AllCells will select method of delivery; title passes to the Customer upon AllCells’ delivery of products to the transportation company. If a shipment is damaged, Customer should accept the shipment and retain all shipping materials for inspection, make a note on the transportation company waybill of any visible damage at the time of receipt and report the damage to AllCells as soon as possible. Customer is responsible for delivery of products damaged by the shipping company. If any shipping discrepancies are discovered, claims must be made within 10 days of receipt of shipment Products may not be returned without prior authorization by AllCells. Due to the perishable nature of products, Customer must promptly contact AllCells as soon as possible for any product conformance issues.
(b) International Shipping. Products are shipped with Incoterms DAP (Delivered At Place), where freight is prepaid and added to the invoice. AllCells will select method of delivery; title passes to the Customer upon AllCells’ delivery of products to the Customer. Customer is responsible for importing products and Customer is responsible for any and all duties and taxes required for import. If a shipment is damaged, Customer should accept the shipment and retain all shipping materials for inspection, make a note on the transportation company waybill of any visible damage at the time of receipt and report the damage to AllCells as soon as possible. Customer is responsible for delivery of products damaged by the shipping company. If any shipping discrepancies are discovered, claims must be made within (ten) 10 days of receipt of shipment. Products may not be returned without prior authorization by AllCells. Due to the perishable nature of products, Customer must promptly contact AllCells as soon as possible for any product conformance issues.
- PAYMENT
Customer shall render all payments due and payable to AllCells within thirty (30) days from issuance of invoice. The Customer will pay interest in the amount of 1.5% per month (or the maximum amount permitted by law if less than 1.5% per month) for any undisputed payment not timely received. The Customer will also reimburse AllCells for any attorneys’ fees and other costs or expenses incurred as a result of AllCells’ efforts to collect late payments. Customer shall pay AllCells within thirty (30) days of receipt of an invoice. As and when required by local law, VAT, GST or similar sales taxes or duties actually incurred by AllCells and imposed by any governmental entity will be invoiced at current statutory rates and paid to AllCells by the Customer in addition to all fees and expenses owing.
- LIMITATIONS ON USE OF PRODUCTS
Customer acknowledges and agrees that AllCells research grade products are intended for research use only and are not to be used for any other purpose, including but not limited to, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses or any type of consumption or application to humans. AllCells opposes any research in violation of any ethical, legal, or local, state, and federal governmental research guidelines within the United States and the import countries of Customers.
AllCells clinical grade products are intended for further cell processing manipulation and further manufacture of allogeneic cell therapies only. Customer acknowledges and agrees that clinical grade products are not intended for direct human use. Clinical grade products are provided as a raw material for use in the manufacture of human cells, tissues and cellular and tissue based products (HCT/Ps) and are not considered HCT/Ps themselves. Clinical grade products may be used by the Customer for the manufacture of allogeneic cell therapy products for clinical use and commercial sale, provided, however that AllCells is in no way liable for such cell therapies or derivatives created from AllCells products.
Customer acknowledges and agrees that the resale of AllCells products is prohibited. Customers that develop derivative products from AllCells’ products with the intent to sell such derivatives, including but not limited to, as a component of another product or kit for resale, may only do so with AllCells written permission granted to Customer prior to such resale and subject to additional terms and conditions.
Customer expressly warrants that it has all required governmental licenses, regulatory approvals, permits and other approvals required to purchase, use and/or store the Products purchased from AllCells and will comply with all laws, rules, regulations, and guidelines applicable to Products purchased hereunder. AllCells may immediately terminate any Customer’s ability to make purchases as well as any other agreements with Customer for the sale of products if AllCells reasonably determines that Customer or any of its affiliates has breached this limitation. AllCells will not be liable for any such research or use by the Customer in violation of any laws, rules or guidelines or the limitations stated herein.
- CONFIDENTIALITY
“Confidential Information” means all non-public, protected and/or proprietary information in the broadest sense communicated, observed, or heard, by either Customer or AllCells, including either party’s employees, subcontractors, consultants, agents, and affiliates that relates to past, present or future research, development, processes, protocol(s), financial statements, personnel information, pricing and/or business activities of the Party disclosing the Confidential Information (the “Disclosing Party”) and its respective systems, procedures, algorithms, and data of which the Party receiving the Confidential Information (the “Receiving Party”) may construct, acquire, access, or possess by reason of this Agreement. Confidential Information will include any Confidential Information disclosed previously by a Disclosing Party to a Receiving Party in connection with the discussions among the Parties with respect to the subject matter of this Agreement. Each party agrees that (i) it will use the disclosing party’s Confidential Information only as may be necessary in performing its obligations or exercising its rights hereunder; (ii) it will treat such information as confidential and proprietary; (iii) it will take all reasonable precautions to protect the Confidential Information; (iv) it will not otherwise appropriate such information to its own use or to the use of any other person or entity; and (v) without the prior written consent of the disclosing party it will not disclose such information orally or in writing to any third party; provided, however that AllCells may disclose the Customer’s Confidential Information to: (A) AllCells’ affiliates and its and their respective subcontractors, agents or representatives, all of whom are bound to obligations of confidentiality and non-use substantially similar to those set forth herein; (B) the Customer’s subcontractors, agents or representatives, and other third parties, all of whom have a need to know such information in connection with AllCells’ provision of the products; or (C) the FDA or other regulatory authorities as required by applicable laws or regulations. Nothing in these Terms will be construed to restrict disclosure or use of information that (a) was in the possession of or rightfully known by the recipient, without an obligation to maintain its confidentiality, prior to receipt from the other party; (b) is or becomes generally known to the public without violation of these Terms; (c) is obtained by the recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; or (d) is independently developed by the receiving party without reference to the other party’s Confidential Information. Nothing in this Agreement shall restrict the parties from disclosing Confidential Information as required by law or court order or other governmental order or request, provided in each case the party requested to make such disclosure shall, to the extent permitted by law, timely inform the other party to allow the Disclosing Party an opportunity to use commercially reasonable efforts to limit the disclosure and maintain the confidentiality of such Confidential Information. The party required to make such disclosure shall permit the other party to attempt to limit such disclosure by appropriate legal means.
- INTELLECTUAL PROPERTY
Customer acknowledges and agrees that AllCells shall own all rights, title, and interest to all AllCells’ intellectual property owned prior to the term of this Agreement or developed by AllCells’ anytime during or after the term of this Agreement, which shall include, without limitation, AllCells’ processes, procedures, improvements, methods, techniques, technology, copyrights, patents, trade secrets, as well as any other intellectual property rights associated with any ideas, concepts, inventions, processes, works of authorship, or Confidential Information, which shall all be the exclusive property of AllCells and shall not be considered a deliverable.
- WARRANTIES
AllCells shall, in its sole discretion, either replace any research grade Products which do not substantially meet the minimum specifications claimed in the certificate of analysis, or refund the price paid by the Customer for such nonconforming research grade products. AllCells guarantees that its research grade products meet or exceed the release criteria for total cell count and viability immediately post-thaw prior to any manipulation (e.g. washing) provided the products are thawed using the recommended AllCells procedure, which can be located here. Research grade cryopreserved Products are subject to this warranty for up to one (1) year from the delivery date, provided that such products have been stored under AllCells recommended storage conditions, which can be located here. Customer must promptly notify AllCells in writing upon the AllCells of any material defect or nonconformance and provide evidence supporting such a claim. For clinical grade products, AllCells may, in its sole discretion, replace such clinical grade products which have been dispositioned as nonconforming or rejected. Customer’s perceived nonconformance observations shall be communicated to AllCells per the requirements of the Quality Agreement. The warranties provided by AllCells herein are not applicable to custom products or any products that have been rendered unusable due to improper storage (storage outside the recommended and documented storage conditions) or handling by the Customer, shipping agent or carrier, and do not extend to any derivative products that contain AllCells’ products. WARRANTY DISCLAIMER: ALLCELLS’ WARRANTIES APPLY ONLY TO THE ORIGINAL CUSTOMER FOR PRODUCTS ACTUALLY PURCHASED DIRECTLY FROM ALLCELLS AND CANNOT BE TRANSFERRED. ALLCELLS DOES NOT WARRANT ANY BIOLOGICAL PROPERTIES ASSOCIATED WITH ITS PRODUCTS. THE OBLIGATION TO REPLACE PRODUCTS OR REFUND THE PRICE PAID IS CUSTOMER’S SOLE REMEDY. ALLCELLS DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ANY WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR PERFORMANCE.
- INDEMNIFICATION AND LIMITATION OF LIABILITY
The Customer shall promptly indemnify, defend and hold harmless AllCells and its affiliates and its and their respective directors, officers, employees, subcontractors and agents (“AllCells Parties”) from and against any and all third party losses, liabilities, claims, causes of action, suits, awards, damages, expenses, costs, fees (including reasonable attorneys’ fees) whether joint or several (collectively, the “Losses”) relating to, arising from or in connection with these Terms, the Customer’s purchase of the products, the Customer’s use of the products or any deliverable, the Customer’s negligence or willful misconduct, or the Customer’s violation of any laws.
IN NO EVENT WILL ALLCELLS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR RELATED TO THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWSOEVER ARISING, EITHER OUT OF BREACH OF THIS AGREEMENT (INCLUDING BREACH OF EXPRESS OR IMPLIED WARRANTY), NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER THEORY, EVEN IF THE CUSTOMER HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ADDITION, ALLCELLS’S LIABILITY FOR DIRECT DAMAGES ARISING FROM THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY THE CUSTOMER FOR THE PRODUCT OR DELIVERABLE UNDER WHICH SUCH DAMAGES AROSE. IN LIEU OF DIRECT DAMAGES AND AS THE CUSTOMER’S SOLE REMEDY HEREUNDER, ALLCELLS MAY CHOOSE TO REPLACE ANY NONCONFORMING PRODUCT OR DELIVERABLE AT ALLCELLS’ SOLE COST AND EXPENSE.
THE CUSTOMER ACKNOWLEDGES THAT IT IS ASSUMING ALL RISK AND RESPONSIBILITY FOR ITSELF FOR THE USE OF THE SERVICES AND ANY DELIVERABLE PROVIDED BY ALLCELLS TO THE CUSTOMER, INCLUDING BUT NOT LIMITED TO PERSONAL INJURIES, DAMAGES, OR DEATH RESULTING FROM THE USE THEREOF, THE APPLICATION OF LAWS OR REGULATIONS, OR THE INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS ARISING FROM THE USE THEREOF.
- MISCELLANEOUS
Relationship of the Parties. The Parties are independent contractors and not agents of each other unless otherwise explicitly agreed to in writing. Nothing in this Agreement is intended or shall be deemed to constitute a partnership, principal/agent, employer/employee, or joint venture relationship. Neither Party shall have the power or right to bind or obligate the other Party, nor shall it hold itself out as having such authority, except to the extent, if at all, specifically provided for in this Agreement or as authorized in writing.
Force Majeure. In the event either party is delayed, hindered or prevented from performing any act required hereunder by reasons beyond its ability to reasonably anticipate and prevent, control or mitigate (a “Force Majeure Event”), then performance of such act (except for payment of money owed) shall be extended for the reasonable period of such delay, and either party shall be granted a reasonable period of time to perform after the cessation of the reason for the delay. Notwithstanding the foregoing, the customer shall not be relieved from payment of non-cancellable expenses incurred by AllCells as a result of a Force Majeure Event.
Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, excluding that body of law known as choice of law, and shall be binding upon the parties hereto in the United States and worldwide.
Survival. The terms, provisions, representations and warranties contained in this Agreement that, by their context, are intended to survive the performance thereof by either or both parties hereunder, shall so survive the expiration or termination of this Agreement.
Entire Agreement. This Agreement, in conjunction with its attachments, embodies the entire and integrated understanding between the parties and supersedes all prior agreements or understandings, negotiations, or representations either written or oral, regarding its subject matter. The terms and conditions of any Customer purchase order are void and shall not operate to change or amend these Terms. To the extent that terms and/or provisions of any other document relating to the sale of AllCells products to Customer conflict with these Terms, these Terms shall control. No modification of these Terms shall be deemed effective unless in writing and executed by both parties.
- PUBLICITY
Except to the extent required by applicable law or the rules of any stock exchange or listing agency, Customer will not use the name and logo of AllCells in any form of advertising, promotion or publicity or in any press release, without the prior written consent of AllCells.
