Terms and Conditions

1. General

1.1. The terms and conditions set out below include the recitals, schedules and appendices as amended from time to time by Cellexus (and notified in writing to the Customer), together with the Quote (together the ‘Agreement’):

1.1.1. form part of every contract for the sale of Products from Cellexus to the Customer and apply to all dealings between Cellexus and the Customer; and

1.1.2. are accepted either expressly in writing by the Customer or by the Customer placing an order with Cellexus.

1.2. Unless otherwise expressly notified by Cellexus in writing, the terms and conditions set out in this Agreement shall apply to all the Products sold by Cellexus to the Customer. Other than as set out expressly in this Agreement, all other terms and conditions, including any such terms pursuant to which a Customer makes an order or purports to make an order, are expressly excluded and shall not apply.

1.3. This Agreement supersedes all prior agreement, arrangements and understandings between the parties in respect of the Products and constitutes the entire agreement between the parties relating to the Products (save that neither party seeks to exclude liability for the fraudulent pre-contractual misrepresentation upon which the other party can be shown to have relied) or any other liability which may not be excluded by any applicable law, rule or regulation.

1.4. No addition or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by the duly authorised representative of each of the parties.

2. Interpretation

2.1. In this Agreement

2.1.1. ‘Cellexus Intellectual Property’; means patents, rights to inventions, utility models, copyright, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world that are owned or belong to Cellexus;

2.1.2. ‘Consumables’ means bioreactor bags, condenser liners and gas filters.

2.1.3. ‘Customer’ means the business identified in the Quote or PO as customer who has made, or purported to make an order to rent or purchase the Products from Cellexus;

2.1.4. ‘Equipment’ means the hardware;

2.1.5. ‘Group Company’ means in relation to a company, any subsidiary of it, any holding company of it and any subsidiary of any such holding company;

2.1.6. ‘Hardware’ means the laboratory equipment as specified in the Quote or PO;

2.1.7. ‘Software’ means the software owned by Cellexus which runs part of the Equipment, including any updates and/or modifications;

2.1.8. ‘Software Licence’ means a restricted, personal, non-exclusive, non-transferable license to use the Software by Customer as part of the Equipment in accordance with the Product Specification, for the term of this agreement which shall immediately terminate upon any termination or expiration of this Agreement;

2.1.9. ‘Products’ means the Hardware, Consumables, Software Licenses and any other goods specified in the Quote;

2.1.10. ‘Product Specification’ means the specification and performance criteria of the Products subject to tolerances, limitations and exceptions stated therein, as described in the User Manuals;

2.1.11. ‘PO’ means an order placed by the Customer to rent or purchase the Products which is accepted in writing by Cellexus;

2.1.12. ‘Quote’ means the quotation (if any) by Cellexus to the Customer for the Products the Customer wishes to purchase;

2.1.13. ‘Taxes’ means duty, fee or charge imposed, from time-to-time, on the sale of the Products by any statute, legislative instrument or government authority;

2.1.14. ‘User Manuals’ means the operating manuals, user instructions, technical literature and other documentation provided by Cellexus to the Customer in relation to the use of the Products;

2.1.15. ‘VAT’ means any value added tax or any other current or future sales tax.

3. Quotations and Orders

3.1. Unless otherwise specified by Cellexus, Quotes are valid for thirty (30) days but shall not constitute offers, only invitations to the Customer to order from Cellexus.

3.2. Orders are not binding on Cellexus unless the order (i) refers to Cellexus’ reference number stated on the Quote (other than where no Quote is provided); and (ii) is accepted in writing by Cellexus.

3.3. Orders constitute an offer by the Customer to purchase or rent the Products in accordance with these Terms and Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable specification submitted by the Customer are complete and accurate.

3.4. Once an order is accepted by Cellexus the Agreement shall come into existence and it may not be cancelled, carried or suspended by the Customer except with the written agreement of Cellexus on the terms that the Customer shall promptly reimburse and indemnify and keep indemnified Cellexus in full for all loss, costs, damages, charges and expenses incurred by Cellexus as a result of such cancellation, variation or suspension.

4. Prices

4.1. The price of the Products shall be the price as set out in the Quote, or where no Quote has been provided, the price as set out in Cellexus’ published price list at the time of the receipt of the PO (‘Price’).

4.2. Unless expressly stated otherwise by Cellexus in the Quote, or otherwise expressly agreed in writing by Cellexus, the Price shall be in GBP (Pounds Sterling) irrespective of where the Products are supplied; and exclude VAT, Taxes, insurance, transport, storage or similar costs which (if any) shall be paid in addition by the Customer.

5. Payment

5.1. Unless the parties otherwise agree in writing, Cellexus will invoice the Customer for the Products (plus any other relevant amounts) at the time of dispatch.

5.2. Payment is due in thirty (30) days from the date of the invoice by Cellexus.

5.3. Unless expressly agreed otherwise by Cellexus, payment shall be made in the same currency as the Price (determined in accordance with clause 4).

5.4. Time shall be of the essence in respect of payment of the Price of the Products. If the Customer fails to make any payment when due then, without affecting any other rights, which it may have and/or remedies available to it, Cellexus may:

5.4.1. suspend any further deliveries to the Customer until payment is made; and/or

5.4.2. deduct outstanding sums from any sums owed by Cellexus to the Customer under this Agreement, and retain any sums paid as deposit for the Products, or otherwise; and/or

5.4.3. require the Customer to pay any costs of storage of the Products; and/or

5.4.4. charge interest on any unpaid amount at a rate of eight percent (8%) above the Barclays UK base rate from time-to-time from day-to-day (both before and after any judgement) from the due date until payment is full is received; and/or

5.4.5. treat this Agreement as repudiated and terminated.

6. Delivery

6.1. Delivery shall, subject to these conditions, take place FCA from a UK embarkation point (as defined in Incoterms 2020). Customer shall pay to Cellexus the cost of any VAT, Taxes, insurance, transport, storage or other similar costs incurred by Cellexus.

6.2. Any delivery dates, requested or agreed, are estimates only. Cellexus may deliver early with prior notice. Cellexus shall not be liable for any delay in delivery whether arising out of Cellexus’ negligence or otherwise.

6.3. The Customer shall reimburse Cellexus for any costs incurred (by way of storage, insurance, transport or otherwise) as a result of any variation of delay in delivery caused by any act of default of the Customer.

6.4. Cellexus shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide Cellexus with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

6.5. The Customer shall not terminate the Agreement by reason of any delay in delivery and/or any short risk.

7. Risk and Title

7.1. Notwithstanding clause 6, the risk in the Products shipped under this Agreement shall pass to the Customer on shipment by Cellexus.

7.2. Title to the Products (if Customer has purchased the products rather than renting) shall not pass to the Customer until Cellexus receives payment of the Price for the Products in full (in cash or cleared funds) in which case title to the Products shall pass at the time of payment.

7.3. Until title to the Products has passed to the Customer, the Customer shall:

i. not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

ii. maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.

8. Cellexus’ Warranties

8.1. Cellexus warrants that the Products, for a period of twelve (12) months after the date of installation:

i. Be reasonably free from defects in materials, workmanship and installation;

ii. Conform in all material respects to the relevant Product Specification.

8.2. The warranties in clause 8.1 given by Cellexus shall not apply and Cellexus shall be under no liability in respect of any defect in the Products arising from:

i. the acts or omissions of persons other than Cellexus, Cellexus’ personnel or Cellexus’ agents, including but not limited to repairs, additions or charges made to the Products by the Customer or anyone else that is not authorised by Cellexus;

ii. modification alteration, damage, storage or working conditions or problems associated with the Customers’ use that has not been authorised, validated and tested by Cellexus;

iii. moving the Products from their installed location without the prior written consent of Cellexus;

iv. a failure to perform standard operating procedures and routine maintenance as specified in the User Manual;

v. The environmental conditions at the delivery address;

vi. the installation of software or applications (including modifications or upgrades to any Software) that is not authorised or approved by Cellexus;

vii. the use of or invasion by malicious software programs such as viruses;

viii. carelessness, mishandling, operation errors, vandalism or unforeseen events; and

ix. changes made to ensure the Products comply with applicable statutory or regulatory requirements.

8.3. The warranties in clause 8.1 given by Cellexus shall not apply if the total price for the Products has not been paid by the Customer by the due date.

8.4. Customer shall comply with all applicable laws, regulations, ordinances and judicial and administrative orders, and regulations when using the Products in any jurisdiction to ensure any use of the Products is safe, ethical and legal.

8.5. Cellexus does not give any warranty that the Products are fit for any particular purpose, including but not limited to commercial, diagnostic or therapeutic use.

8.6. Cellexus shall not be liable for any loss, including any biological loss, or damage suffered by the Customer or for any claims by third parties arising directly or indirectly out of the Customers’ use of the Products in any way.

8.7. Cellexus does not warrant that the Products will achieve any particular performance criteria.

8.8. Cellexus will discharge in full any liability to the Customer under this warranty by repairing or replacing the relevant Products (or the part of the subject of the claim) at no charge or, at Cellexus’s sole discretion, by refunding to the Customer the price of the Products paid by the Customer (or the relevant proportion of the price).

8.9. Subject to clause 8.9 above, no liability of Cellexus to the Customer whether under this Agreement or otherwise in connection with the supply of the Products shall exceed the price of the Products in respect of which the claim is made.

8.10. Subject to clause 8.10, the following types of loss are wholly excluded:

i. any increased costs or expenses;

ii. any loss of profits, sales or business;

iii. any loss of agreements or contracts,

iv. any loss of revenues, anticipated savings;

v. loss or damage to goodwill;

vi. loss of use or corruption of software, data or information;

vii. any loss which is special, indirect, consequential or economic or which, whether or not in practice it arises as a direct and natural result of a breach of this Agreement, was not at the time this Agreement was made a reasonably foreseeable result; and

viii. any indirect financial loss suffered by the Customer.

8.11. Subject to clause 8.9 above and save as is expressly set out in this Agreement, all warranties or conditions of Cellexus, whether express or otherwise, are excluded to the fullest extent permitted by law and in no circumstances Cellexus shall be liable for any loss or damage arising out of or relating to the Products in any way whatsoever, whether direct or indirect (including loss of profit and goodwill) and whether arising through negligence, misrepresentation, breach of any statutory duty, or of any condition, warranty or other term (express or implied) of any Agreement or otherwise.

8.12. Nothing in this agreement shall limit Cellexus’ liability in respect of any claim for death or personal injury caused by the negligence of Cellexus, fraud or fraudulent misrepresentation, or in respect of liability for defective products under the Consumer Protection Act 1987 or in respect of any liability which arises under any safety regulation made under the Consumer Protection Act 1987 and which such regulation does not allow to be excluded or any other liability which may not be limited or excluded at law.

8.13. If the Customer receives any claim from any third party in relation to the Products, which is reasonably likely to lead to loss to Cellexus, the Customer shall:

i. promptly notify Cellexus of such claim or circumstance;

ii. promptly provide such assistance to Cellexus and take such action as Cellexus may request to avoid dispute, defend, mitigate, resist, appeal or compromise such claim or circumstance including but not limited to allowing Cellexus to take full control of any proceedings or negotiations in connection with the claim; and

iii. not settle or compromise not agree any matter in the conduct of any dispute, without the prior written approval of Cellexus;

iv. indemnify Cellexus in full for all loss, costs, damages, charges and expenses incurred by Cellexus in respect of the Customer’s use of the Products that is not in accordance with the User Manual, or was without the prior written consent of Cellexus, or did not comply with all applicable laws, regulations, ordinances and judicial and administrative orders, and regulations in respect of using the Products in any jurisdiction.

9. Confidentiality and Software Licence

9.1. Each party agrees that it shall maintain confidentiality during the Agreement and after termination of the Agreement (will not share or disclose to a third party) with respect to all the other party’s confidential information, in relation to the business, affairs, customers, clients or suppliers of the other party, and particularly pricing information originating from Cellexus which should come or be brought to the Customer’s attention.

9.2. The Customer shall use the Software for processing data for internal research and development purposes only. The Customer shall not permit any Third Party to use the Software. The Customer shall effect and maintain adequate security measures to safeguard the Software from access or use by any unauthorised person, and shall notify Cellexus immediately if the Customer becomes aware of any unauthorised use of the whole or part of the Software by any Third Party and shall take all steps necessary to ensure that such unauthorised use is terminated.

9.3. The Software licence shall not be deemed to extend to any of Cellexus’ patent, copyright, trade secret, trade mark, designs, goodwill, know how or other proprietary rights, whether registered or unregistered that are owned or used by Cellexus (‘Intellectual Property’), other than in or to the Software (but not to include source code), unless specifically agreed to in writing by Cellexus.

9.4. The Customer shall not (a) make copies of the Cellexus Products or any other materials associated with the Software; (b) combine or merge the architecture, tools, code, utilities, files or algorithms of the Software with any other software, application programming interface, or online service; (c) use any authoring tool in the Software for any purpose other than use of the Products; or (d) sublicense, distribute, rent, lease, transfer, resell or otherwise make available the Software or any copy thereof or any use of the Software to any third party.

9.5. No copies may be made of the Software without prior written consent of Cellexus, save that the Customer may make a single back-up or archival copy. Such copies and the media on which they are stored shall be the property of Cellexus and the customer shall ensure that any copy bears Cellexus’ proprietary notices. The Software Licence shall apply to any copy as it applies to the Software.

9.6. The Software Licence shall terminate automatically and immediately if the Customer fails to abide by the terms of this clause 9 or if the Agreement is terminated.

10. Intellectual Property

10.1. Save as expressly set out in this Agreement, the Customer shall not acquire, or seek to acquire by this Agreement or any activity under it, not represent in any way that it is entitled to, any rights, under or to any Intellectual Property belonging to Cellexus which, as between Cellexus and the Customer together with all goodwill attached thereto, is and shall remain the sole property of Cellexus.

10.2. The Customer shall not rent, lease, sub-licence, loan, copy, modify, adapt, merge, translate, reverse engineer, decompile, disassemble or create derivative works based on the whole or any part of any technology, works, or Software, or use, reproduce or deal in Cellexus Intellectual Property or any part thereof in any way save or expressly permitted by law or authorised in writing by Cellexus.

11. Data Protection

11.1. The parties shall comply at all times with its obligations under the Data Protection Act 2018 or legislation that replaces them in whole or in part (the ‘Act’) and any other legislation relating to the protection of personal data (including any legislation and regulatory requirements relating to personal data in other applicable jurisdictions, including the USA) including the data protection principles set out in the Act and with the guidelines and guidance notes issued from time-to-time by the Information Commissioner’s Office (and any successor) and all other relevant authorities in the relevant jurisdiction applicable to the Customer or Cellexus; and maintain all the necessary registration under the Act.

12. Termination

12.1. Without affecting any other rights and remedies Cellexus may terminate this Agreement and the licences granted pursuant to this Agreement (including but not limited to the Software Licence) forthwith if;

i. The Customer breaches any terms of, or purports to cancel, any contract with Cellexus; or

ii. The Customer is unable to pay its debts within the meaning of the Insolvency Act 1986 or any statutory modification or re-enactment thereof or equivalent provision in another jurisdiction; or

iii. Any step, action, application or proceeding is taken by or in respect of the Customer in relation to the whole of any part of its undertaking for a voluntary arrangement or composition or reconstruction of its debts or winding-up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy or its equivalent process in any jurisdiction.

12.2. If Cellexus terminates this Agreement under the clause, then without affecting any other rights and remedies, the following shall occur:

i. all sums outstanding shall be immediately due and payable by the Customer;

ii. Cellexus may at its sole discretion dispose of any Products it wishes;

iii. the Customer shall reimburse it for any loss or expenses incurred to it, including attorneys’ fees, in connection with the Agreement;

iv. Cellexus may, at its sole discretion, be authorised to enter the Customer’s premises and/or property in order to uplift and return the Products to Cellexus at the Customer’s expense; and

v. the Customer shall discontinue use and, as instructed by Cellexus, shall destroy or return all copies of the Software and any documentation relating to the Equipment to Cellexus.

12.3. Termination of this Agreement, for whatever reason, shall not affect any of its provisions which are intended to continue to have effect after it has come to an end.

13. Force Majeure

13.1. Cellexus shall not be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from an event, circumstance or cause beyond Cellexus’ reasonable control (‘Force Majeure Event’). In such circumstances Cellexus shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for [3] months, the Customer may terminate this agreement by giving [10] days’ written notice to Cellexus.

14. Miscellaneous

14.1. No notice to be given to Cellexus shall be effective unless given in writing delivered by first class post [or by email] or by facsimile transmission (subject to confirmation by post within three (3) days) and received by Cellexus at its address [(or email address)] stated on the first page of this Agreement or such other address as Cellexus may notify to the Customer in writing as its address for service. No waiver by Cellexus of any breach of the Customer’s obligations shall constitute a waiver of any other prior or subsequent breach and Cellexus’ rights shall not be affected by any other delay, failure, or omissions to enforce or express forbearance granted in respect of any obligation of the Customer in writing as its address for service.

14.2. No waiver by Cellexus of any breach of the Customer’s obligations shall constitute a waiver of any other prior or subsequent breach and Cellexus’ rights shall not be affected by any other delay, failure, or omissions to enforce or express forbearance granted in respect of any obligation of the Customer.

14.3. Cellexus may by itself or through any Cellexus Group Company perform and of its obligations or exercise any of its rights under this agreement.

14.4. The Customer may not assign, transfer or sub-contract any benefit or burden it has under this Agreement to any other party without prior written consent of Cellexus.

14.5. If the whole or any part of any clause(s) of this Agreement is invalid, that invalidity shall not affect the validity of any other provision.

14.6. Save in respect of rights or obligations expressly stated to be given in favour of a Cellexus Group Company which shall accrue directly for their benefit, this Agreement is not intended by the parties to give rise to any right which is enforceable by any third party by virtue of the Contract (Third Party Rights) (Scotland) Act 2017. No third party shall have any rights to approve any extension, waiver and/or amendment to this agreement.

14.7. This Agreement is subject to Scots law. The parties agree that the Scottish Courts shall have exclusive jurisdiction save that Cellexus shall retain the right to bring proceedings against the Customer in any other court.

14.8. Customer is hereby put on notice that Cellexus Products and Software have not been subject to regulatory review or approved by the Federal Drug Administration or any other Government agency or any other similar foreign entity, and have not been approved by CIA compliance, or otherwise approved under any statute, rule, law, or regulation for any purpose, research, commercial, diagnostic, medical or otherwise.