For InGeneron, Inc.
Pursuant to this Sales Order (“Sales Order”) by and between INGENERON and you (“Buyer”), INGENERON has agreed to sell, and Buyer has agreed to purchase, certain veterinary regenerative cell processing equipment (the “Equipment”). Buyer and INGENERON agree that the Sales Agreement and any recurring sales transaction between Buyer and InGeneron shall be governed and controlled by this set of INGENERON standard terms and conditions of sale (“Terms”) (the Sales Order and Terms together, the “Agreement”).
All payments shall be due and payable in accordance with the payment terms set forth in this Agreement. All amounts payable hereunder shall be paid when due, time being of the essence. Any amount due hereunder not timely paid shall incur a late charge on the unpaid balance of 1.5% per month or portion thereof (or such lesser amount as may be the maximum permitted by law). Buyer shall reimburse INGENERON any and all attorneys’ fees and other costs incurred by INGENERON in collecting any payment due hereunder.
All amounts payable hereunder are exclusive of any applicable federal, state, or local taxes and Buyer agrees to be responsible for the payment of same or to assist INGENERON in the collection, administration, and remittance of any such taxes to the extent same are the legal responsibility of INGENERON. Ownership; Risk of Loss; Security Agreement.
- Until Buyer has paid the purchase price in full, title to and ownership of the Equipment shall remain with INGENERON and Buyer shall not be entitled to, and shall not, sell, assign, convey, rent, pledge, or otherwise transfer any interest in the Equipment to any other party, including, without limitation, using the Equipment as security for borrowing or any other purpose.
- Although title shall not pass until the purchase price is fully paid, Buyer agrees to be fully responsible for any loss of or damage to the Equipment from and after the time that INGENERON delivers the Equipment to Buyer.
- Buyer hereby grants to INGENERON a purchase money security interest in the Equipment (and all proceeds thereof) until the purchase price for same is paid in full. Buyer shall execute any and all financing statements and take any other action deemed necessary or desirable by INGENERON to perfect its security interest.
Buyer shall at all times be responsible for all aspects of patient care and treatment, including, without limitation:
- diagnosis of patients and prescription of regenerative cell treatment;
- obtaining any required consent of owners, guardians, or other parties;
- preparation of patients for treatment, including, without limitation, ensuring adequate immobilization and/or sedation of equine and other patients to prevent uncontrolled kicking, agitation, distress, or pain;
- provision of any and all treatment including, without limitation, regenerative cell treatment with the Equipment, emergency treatment, or otherwise;
- provision of appropriately trained and licensed personnel to operate the Equipment and provide proper patient care;
- provision of any other products or services necessary to ensure proper and safe patient care. BUYER ACKNOWLEDGES THAT THE EQUIPMENT CONSISTS OF SOPHISTICATED ELECTRONIC EQUIPMENT. IF THE EQUIPMENT IS NOT USED PROPERLY, INJURY AND/OR PROPERTY DAMAGE, COULD RESULT. AS SUCH, BUYER IS FULLY RESPONSIBLE FOR ENSURING THAT ALL USE OF THE EQUIPMENT IS COMPLETED IN A SAFE AND PROPER MANNER, BY PROPERLY TRAINED AND LICENSED INDIVIDUALS, AND IN FULL COMPLIANCE WITH ALL INSTRUCTIONS FOR USE PROVIDED BY INGENERON. BUYER’S USE OF THE EQUIPMENT IS AT ITS OWN RISK.
INGENERON warrants to Buyer that, for a period of twelve months after the delivery date (the “Warranty Period”), the Equipment will be free of defects in materials and workmanship and will function in substantial conformity with INGENERON’s specifications. This warranty shall not apply to (and INGENERON shall have no obligation with respect to) any alleged defect to the extent of:
- any alteration, addition, attachment to, or modification of the Equipment not authorized in advance in writing by INGENERON that interferes with normal and satisfactory operation or maintenance;
- noncompliance with instructions for use or environmental specifications for the Equipment;
- use of any accessories to the Equipment not manufactured by INGENERON;
- repair, maintenance, or refurbishment of the Equipment or any portion thereof, including, without limitation, refurbishment of consumables, by any party other than INGENERON;
- neglect, misuse, accidents, failure of electrical power, air conditioning, humidity control, or other acts or conditions not within the reasonable control of INGENERON;
- any defect in connection with which Buyer fails to notify INGENERON in writing of the defect within 30 days of the date the defect was or should have been discovered. Any warranty provided by InGeneron is non-transferable by Buyer.
Compliance with Law
Each party warrants and covenants that it shall do all acts necessary to comply with all federal, state, and local laws, regulations, ordinances, and codes applicable to its operations or performance under this Agreement. Buyer specifically acknowledges and agrees that the Equipment is not FDA-approved for use in the treatment of humans and is therefore only to be used in connection with veterinary medical practice.
If INGENERON is delayed in or prevented from performing any obligation hereunder due to causes or events beyond its control, including, without limitation, any act of God, fire, riot, embargo, strike, legal action,
accidents, transportation delays, present or future law, or governmental order or regulation, such delay or non-performance shall be excused during the pendency of such condition and the time for performance extended or rescheduled by INGENERON.
All INGENERON confidential information and trade secrets (including, without limitation, INGENERON’s pricing and purchase terms) disclosed to or learned by Buyer shall remain the property of INGENERON. For a period of five (5) years from the date of disclosure to Buyer (or, in the case of trade secrets as defined under Texas law, until such information no longer constitutes a trade secret), Buyer shall not disclose such proprietary information to any third party or use such information in any way other than as expressly authorized in writing by INGENERON. INGENERON retains all rights in and to any intellectual property disclosed to Buyer at any point in connection with the Equipment.
Any dispute between the parties relating to this Agreement, whether or not a contract claim, shall be determined by binding and non-appealable arbitration under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator chosen by the parties, or, if the parties cannot agree upon a single arbitrator within thirty (30) days of a party giving notice to the other of a proposed choice for an arbitrator, then by a single arbitrator appointed by the Houston, Texas office of such association. The arbitration shall be conducted through the Houston, Texas office of such association and the arbitration costs shall be divided and borne equally by the parties.
All notices under this Agreement shall be in writing and shall be deemed to have been duly given and received only on the business day when personally delivered or transmitted successfully via facsimile, one (1) business day following the business day when deposited with a commercially respected overnight delivery service such as Federal Express, service fees prepaid, or three (3) business days following the day when sent by certified mail, return receipt requested, postage prepaid, to the intended recipient at the address or facsimile in the Sales Agreement.
No waiver by either party of any term of this Agreement shall affect such party’s rights to enforce such term in a subsequent instance. No waiver shall be binding upon a party unless confirmed in writing by that party. This Agreement may not be modified or amended other than in writing executed by both parties. This Agreement is severable, in that the invalidity of any term herein will not affect the enforceability of the remaining portions of this Agreement. This Agreement shall be governed by the laws of the state of Texas, excluding conflict of laws
principles. The headings contained in this Agreement are for the convenience of the parties only and shall not be interpreted to affect in any way the language contained herein. Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that either party may assign this Agreement to a parent, subsidiary, or other affiliated party without the consent of the other party. INGENERON shall have the right to sublicense or subcontract any of its responsibilities hereunder. Unless otherwise agreed in advance in writing by INGENERON, Buyer shall remain liable for all assigned obligations in case of any failure of performance thereof on the part of any assignee of Buyer. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
Limited Manufacturer Warranty (the “Manufacturer Warranty”)
Certain of the Equipment sold or provided by INGENERON comes with a warranty from the original manufacturer of such Equipment. Manufacturer Warranties may carry different return and warranty policies than Equipment covered under the Limited Warranty offered by INGENERON, and INGENERON makes no claims or guarantees with respect to a Manufacturer Warranty. To return any Equipment under a Manufacturer Warranty for reason of defect, please contact INGENERON to obtain the manufacturer’s telephone number or address and contact the Manufacturer directly. All warranty service or technical support provided on Equipment under a Manufacturer Warranty is provided by the manufacturer, not by INGENERON. Please contact INGENERON or the manufacturer directly for support or other information.
INGENERON provides to Buyer a range of basic technical support options for the Equipment via a variety of on-line, telephone, and other methods. INGENERON may change the means through which it provides technical
support at any time. It is likely that many of Buyer’s questions will be answered by the documentation shipped with, and information loaded on, the Equipment. Set forth below are some current technical support services and options provided by INGENERON to Buyer.
- Product Manuals. A number of manuals and other publications (“Manuals”) accompany your Equipment. We recommend that Buyer carefully review these materials.
- Telephone Support. If you cannot find answers in the Manuals, Buyer can call technical support. Call volume can vary dramatically and affect Buyer’s ability to reach INGENERON technical support and/or the time that Buyer may be required to wait to speak to a technician.
Equipment may not be returned except in the case of defective merchandise. INGENERON may choose to repair, replace, or exchange Equipment at its discretion. Costs for shipping, handling, any applicable insurance fees, and
any applicable sales taxes, which are costs that you paid when you bought the Equipment, are not refundable and will be deducted from any refund. Failure to follow the procedures set out in this section may result in delays in the replacement of parts, repair, or replacement of your Equipment. In addition, INGENERON reserves the right to refuse to accept Equipment when these procedures are not followed. To return Equipment, you must call INGENERON Customer Service to receive a Return Merchandise Authorization (RMA) Number. You must ship the Equipment to INGENERON in original packaging, prepay shipping charges, and insure the shipment or accept the risk of loss or damage during shipment. Any returned Product shipped C.O.D., or without a RMA Number visible on the exterior of the carton, may be refused by INGENERON.
For InGeneron GmbH
Validity for the current purchase agreement and future sales transactions
According to the present purchase agreement between INGENERON and yourself (hereinafter: Purchaser), the purchase of certain regenerative cell processing devices (hereinafter: Devices) has been agreed. Purchaser and INGENERON hereby agree that the present General Terms and Conditions of Business become an integral part of the purchase agreement and of all recurring sales transactions between Purchaser and INGENERON.
All payments shall be due according to the payment terms set in to the present purchase agreement. All amounts must be paid upon maturity. Reference is made to the fact that arrears automatically commence upon expiry of 30 days after maturity and receipt of the invoice pursuant to § 286 subsection 3 German Civil Code. Purchaser shall reimburse INGENERON for all and any damage from default, including default-induced attorneys’ costs, and also default interest.
Retention of title; price risk
- INGENERON reserves title to Devices until complete payment of the purchase price. Purchaser shall not be entitled to sell, to rent, to pledge or in any other way to assign Devices or a share in Devices before complete payment of the purchase price.
- Despite retention of title, the price risk shall pass to Purchaser upon delivery of Devices, i.e. Purchaser remains obliged to pay the purchase price even in the event of destruction of Devices before passage of ownership.
At all times, Purchaser shall be responsible for all aspects of patients’ provisions and treatment. This shall also apply, inter alia, to:
- diagnosis of patients and prescription of a regenerative cell treatment;
- obtaining the necessary approvals from patients, statutory representatives, owners (with a view to their animals) or other parties;
- preparation of the patients and animals for the treatment, including a suitable immobilisation and/or arrestment of movement of animals, in order to avoid uncontrolled kicking, unrest, suffering or pain;
- provision of all treatments, including the regenerative cell treatment with Devices forming the subject matter of the agreement, as well as emergency treatment;
- provision of adequately trained and licensed employees in order to operate Devices and to guarantee proper treatment of the patients; and
- provision of all other necessary products or services, in order to guarantee proper and secure treatment of the patients.
PURCHASER ACKNOWLEDGES THAT DEVICES COMPRISE COMPLEX ELECTRONIC APPLIANCES. IF DEVICES ARE NOT USED PROPERLY, THIS MAY LEAD TO INJURIES AND/OR PROPERTY DAMAGE. AS SUCH, PURCHASER IS COMPLETELY RESPONSIBLE FOR ENSURING THAT DEVICES ARE USED IN A SAFE AND PROPER WAY BY PROPERLY TRAINED AND LICENSED PERSONS AND WITH COMPLETE COMPLIANCE WITH ALL THE INSTRUCTIONS FOR USE PROVIDED BY INGENERON. PURCHASER USES DEVICES AT ITS OWN RISK.
Guarantee; notification duty; exclusion of warranty
- For a period of twelve months after delivery, INGENERON assumes a guarantee for the fact the Devices are free of defects in materials and in their processing and that they function in harmony with INGENERON’s specifications. This assumption of guarantee only applies towards Purchaser from the present purchase agreement and is non-transferable.
- Purchaser shall be obliged to notify INGENERON in writing of each defect or damage within 30 days of obtaining knowledge or negligent failure to obtain knowledge. If Purchaser fails to fulfil the notification duty in good time, its warranty rights shall expire (preclusive period). If Purchaser is not an entrepreneur in the sense of § 14 German Civil Code, public-law entity or public-law fund, this preclusive period shall only apply to obvious defects.
- Further, warranty rights (for damages arising from the following circumstances) have been ruled out if:
- a change, for example use of an additional part or modification of Devices, has not been authorized in writing by INGENERON in advance and this change disturbs the normal and satisfactory operation or maintenance;
- the instructions for use or specifications of the surroundings for Devices from INGENERON are not complied;
- accessories for Devices which have not been produced by INGENERON are used;
- Devices or a part of the same, including the consumables, are repaired, maintained or modernized by a party other than INGENERON;
- a breach of due care, improper use, a failure of the electricity supply or the air-conditioning or of the moisture regulation exists.
The exclusion of warranty shall not apply to damage from an injury to life, limb or health based on a deliberate or negligent breach of duties by INGENERON or a statutory representative or vicarious agent of INGENERON and also to damage based on a breach of cardinal contractual duties or a deliberate or grossly negligent breach of other duties by INGENERON or a statutory representative or vicarious agent of INGENERON. Purchaser’s right to terminate the contract in the event of a breach of duties for which INGENERON is answerable shall remain unaffected.
Compliance with law
Each party shall be obliged to do everything necessary in order to comply with laws, directives, orders and provisions on a national, state and communal level.
If delivery or punctual delivery of Devices is not possible for INGENERON due to unexpected, external and out-of-the-ordinary incidents (force majeure), such as natural catastrophes, fires, unrests, commercial blockades or strikes, said delay or non-performance shall not portray a breach of duties and the delivery time shall be extended accordingly or rescheduled.
All confidential information and trade secrets of INGENERON (including pricing and procurement terms) which are disclosed or notified to Purchaser shall remain property of INGENERON. For a period of five (5) years from the date of disclosure to Purchaser, the latter may not disclose such confidential information to third parties or use it in any way other than that expressly authorized in writing by INGENERON. INGENERON reserves all rights to intellectual property disclosed to Purchaser in connection with Devices at any time.
Place of jurisdiction
The place of jurisdiction for “inner-German” disputes from the present legal relationship, i.e. legal disputes without reference to a country other than Germany, shall be Munich to the extent that Purchaser is a merchant, public-law entity or public-law fund in the sense of § 38 subsection 1 German Code of Civil Proceedings or the residence or customary abode of the party to be sued is not known at the time of the initiation of proceedings (§ 38 sub-section 3 no. 2 German Code of Civil Proceedings).
The place of jurisdiction for all legal disputes from the present legal relationship with a reference to another member state of the European Union or a third country shall exclusively be Munich to the extent that Purchaser is a merchant, public-law entity or public-law fund in the sense of § 38 subsection 1 German Code of Civil Proceedings, at least one of the contracting parties does not have a general place of jurisdiction in Germany, the party to be sued moves its residence or customary abode outside the scope of application of the German Code of Civil Proceedings after conclusion of the contract or the residence of the party to be sued is not known. This clause shall apply independent of the effectivity of the agreement according to Art. 25 subsection 5 Brussels I Regulation.
Choice of law
The contractual relations between the contracting parties shall be governed by the law of the Federal Republic of Germany. The application of UN purchase law has been ruled out.
All notifications on the basis of the present agreement must be made in writing. Written declarations of intention shall be deemed received on the day on which they are handed over personally or successfully transmitted by fax. If the notification is delivered with adequate franking by a recognized overnight delivery service, for example UPS, the declaration shall be deemed received on the following working day. If the declaration is dispatched as recorded delivery with return slip or as a simple letter with sufficient franking to the address stated in the purchase agreement, it shall be deemed received on the third working day.
In the event of a single waiver of one of the contractual terms by one of the parties, the condition in question shall nevertheless remain binding for subsequent cases. Declarations of waiver shall require written form, otherwise they shall not be binding. The present agreement may only be modified or supplemented in a form signed in writing by both parties. The effectivity of the agreement shall not be affected by the invalidity of an individual contractual term. The titles contained in the present agreement shall exclusively serve the parties’ benefit and shall not be included in the interpretation of the agreement.
Ban on assignment
Neither party may assign its rights from the present agreement without the prior consent of the other party. An exception shall be formed by an assignment to a parent company, to an affiliated company or to companies connected to either of the contracting parties in a similar way. INGENERON shall be entitled to grant sublicenses or to forward any of its contractual duties. If there is no deviating written agreement with INGENERON before an assignment by Purchaser, Purchaser shall remain liable for all duties assigned by it, i.e. the original Purchaser shall still be liable if the cessionary to whom assignment was made fails to comply with its performance duty. The present agreement shall be binding for the contracting parties, their successors in title and also for parties to whom a claim has effectively been assigned.
Limited manufacturer’s guarantee
With a view to certain devices, a guarantee from the original manufacturer exists. The manufacturer’s guarantees may entail claims exceeding INGENERON’s liability. INGENERON assumes no guarantee and makes no claims in this regard. If you wish to return a device pursuant to a manufacturer’s guarantee due to a defect, please get in touch with INGENERON in order to inquire the manufacturer’s address or telephone number and to get in touch with the manufacturer directly. All guarantee services or technical support provided for Devices on the basis of a manufacturer’s guarantee shall be provided by the manufacturer, not by INGENERON. For support or other information, please get in touch with INGENERON or directly with the manufacturer.
INGENERON shall provide Purchaser with a series of support options for Devices online, by telephone or by other means. INGENERON can change the accesses via which it provides the technical support at any time. It is probable that many questions from Purchaser can be answered by the information dispatched with the device or stored on the device. Here, some current technical support services which INGENERON provides to Purchaser have been stated.
- Product manuals. A series of manuals and other publications are enclosed with the device. We recommend careful examination of these materials.
- Telephone support. If no answers can be found in the manuals, Purchaser can call technical support. The call volume may vary and impair Purchaser’s possibility of reaching the technical support and/or the time which Purchaser has to wait before it is possible to speak to a technician.
The device may only be returned if it is defective. The right of choice between remedying of the defect and supply of a defect-free object shall accrue to INGENERON. INGENERON shall only bear the expenditure necessary for subsequent performance, but not the expenditure for the first dispatch or for commissioning, also not insurance premiums or sales taxes which are due and you have paid when you bought the device. For the return of the device, you must contact the INGENERON after-sales service in order to obtain an RMA number (Return Merchandise Authorization). You must send the device to INGENERON in its original packaging. INGENERON shall bear the costs of transport and dispatch. In addition, a breach of the procedures portrayed in this section may lead to delays in replacement of individual parts, in repairs or replacement of your device. In addition, INGENERON reserves the right to reject acceptance of the device if these procedures are not obeyed.