AVS Bio Avian Terms and Conditions
General Terms and Conditions of Sale (“Terms and Conditions”)
www.avsbio.com
1-860-889-1389
Avian Vaccine Services, LLC, dba AVS Bio, and its affiliates (“AVS Bio”) will provide the
products (“Products”) and services (“Services”) described in the AVS Bio acknowledgment, quotation, protocol, or statement of work, as applicable (collectively, the “SOW”) and AVS Bio’s customer (“Customer”) will purchase the Products and Services pursuant to the specifications contained in the SOW, and in accordance with these Terms
and Conditions. These Terms and Conditions will also apply to all future purchases of Products and Services by Customer.
1. Binding Character
Customer’s acceptance of delivery of Products or Services will be deemed agreement to the Terms and Conditions.
No other document attempting to negate or otherwise modify the terms hereof will be binding upon AVS Bio unless expressly agreed to by AVS Bio in writing.
2. Provision of the Products and Conduct of the Services
If an amendment to the SOW requires additional or different Products or Services provided or performed by AVS Bio, AVS Bio may agree to provide such Products or perform such Services and will be paid an amount mutually agreed to by the parties. Deviations from the SOW may be made in an emergency without Customer’s approval, if AVS Bio uses commercially reasonable efforts to obtain Customer’s verbal approval, which will then be confirmed in writing.
3. Restrictions on Use and Breeding
Customer will use Products in accordance with all applicable laws. Customer may use the Products for the following purposes: (i)vaccine manufacturing, (ii) use birds for QC testing of vaccines, and (iii) research and development. All other uses are prohibited unless AVS Bio provides Customer prior written consent. For example, Customer may not hatch eggs, including to make SPF eggs, make an SPF farm from AVS Bio’s eggs, or hatching/raising for the manufacturing of Products. In addition, Customer may not use the Products for genetic material/transgenic or genealogy. Also, Customer will not, without the prior written consent of AVS Bio, return Products or shipping containers to AVS Bio.
Customer cannot sell, transfer or make available to a third party the Products or their components for Commercial Purposes. “Commercial Purposes” means any activity for cash or other consideration including, but not limited to: (i) use of the Products or their components or materials made using the Products or their components in manufacturing, or to provide a service, information or data, or for clinical, therapeutic, diagnostic or prophylactic purposes, or (ii) resale of the Products or their components or materials made using the Product or their components, except by licensed distributors of AVS Bio, whether or not resold for use in research. To the extent that AVS Bio owns or controls (with the right to sublicense) intellectual property rights applicable to the Products, those rights are licensed to Customer on a limited, revocable, non-exclusive, non-transferable, and non-sublicensable basis only for the internal uses expressly permitted herein.
4. Pricing and Payment
Unless otherwise set forth in an applicable writing from AVS Bio to Customer (i.e. quotation or email), prices will be as per the then current price list on the day of delivery, and do not include taxes, packaging, insurance, or shipment expenses. AVS Bio may modify the price list from time to time. Customer will pay AVS Bio as set forth in the invoice or SOW. All invoices are due and payable thirty (30) days from the date of the invoice and Customer agrees to pay all invoices submitted. All amounts not paid by Customer when due will accrue interest from the applicable due date until paid, at the highest rate permitted under applicable law. AVS Bio may also elect to cease or suspend the supply of Products and any work on the Services, or withhold required reports or other deliverables if Customer does not make payments when due and payable.
If in the judgment of AVS Bio, Customer’s financial condition is precarious or there has been a materially adverse change in Customer’s financial condition, AVS Bio will have the right to demand payment or other assurances which it deems adequate before providing any Products or Services.
5. Shipment
AVS Bio will ship all Products in accordance with FCA, AVS Bio’s facility, (INCO TERMS 2010).
6. Test Articles
Customer will provide AVS Bio with sufficient amounts of sample (“Test Articles”) with which to perform the Services. Customer will provide AVS Bio with complete and accurate sample composition or other characteristics, proper storage, and safe handling requirements and relevant Bio-Safety Level status. All costs associated with shipping the Test Articles to AVS Bio will be the responsibility of Customer, and AVS Bio will not be
responsible for any loss, damage, or destruction of the Test Articles while in transit. All Test Articles and Products used in connection with the Services will remain the property of Customer.
7. Intellectual Property Ownership
Any inventions, techniques, intellectual property, technology, commercial and industrial secrets, regardless of whether patented or registered (“Intellectual Property”), embodied in, or related to the manufacturing or use of, the Products or performing the Services are, and will remain, AVS Bio’s exclusive property including, but not limited to, present and future documentation, scientific and technical data, test procedures and other information that is owned or licensed by AVS Bio and is not developed hereunder. For the avoidance of doubt, AVS Bio, SPAFAS, and Sunrise Farm are registered trademarks of Avian Vaccine Services, LLC.
8. Warranties
Customer warrants that it owns all rights, title and interest in the Test Articles and the intellectual property related thereto, and that AVS Bio’s use of the Test Articles does not infringe any third-party rights.
AVS Bio warrants that the Products and Services will conform to their applicable specifications. AVS Bio does not warrant or represent that the results of the Services will be acceptable to any regulatory or governmental agency nor that the results of the Services will enable Customer to further develop, market or otherwise exploit the Test Articles or any other product or service.
THE WARRANTY BY AVS BIO SET FORTH HEREIN IS IN LIEU OF ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY OF THE PRODUCTS AND SERVICES FOR CUSTOMER’S PURPOSES, IMPACT OF THE PRODUCTS AND SERVICES ON CUSTOMER’S OPERATIONS, OR NON- INFRINGEMENT OF A PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Any claim for breach of warranty must be made in writing to AVS Bio within ten (10) business days after the Products are delivered or the completion of Services, after which time the Products or Services will be deemed finally accepted. Subject to the limitations set forth in Sections 10 and 11, in the event AVS Bio breaches the warranty set forth above, AVS Bio’s sole liability, and Customer’s sole remedy, will be for AVS Bio to replace the
Products or issue a credit therefore, or conform the work or portion of the Services affected by the breach to the relevant specification.
9. Limitation of Liability
IN NO EVENT WILL AVS BIO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CLAIMS FOR SPECIAL, INDIRECT, INCIDENTAL, COLLATERAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY TYPE OR KIND, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORSEEABLE AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
AVS BIO’S LIABILITY, REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO ACTUAL DAMAGES AND IN NO EVENT SHALL AVS BIO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL PRICE PAID FOR THE PRODUCTS OR SERVICES PURSUANT TO WHICH SUCH LIABILITY ARISES, EXCLUDING TRANSPORTATION OR DOCUMENTATION FEES. FURTHER, AVS BIO SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM, OR IN CONNECTION WITH, ANY DECISION BY CUSTOMER OR ANY THIRD PARTY TO FURTHER RESEARCH, DEVELOP OR MARKET ANY DERIVATIVE OR PRODUCT OR SERVICE RELATED THERETO, OR THE USE MADE OF THE PRODUCTS, SERVICES OR TEST ARTICLES OR SERVICE RELATED THERETO.
10. Indemnification
Customer will defend, indemnify, and hold harmless AVS Bio, its affiliates and their respective directors, officers, employees, and agents from and against any claims, demands, suits, actions, causes of action, losses, damages, fines, and liabilities, including reasonable professional fees (“Claim”) arising out of or in connection with:
(i) the research, development, manufacture, distribution, use, sales or other disposition by Customer, or any distributor, collaborator, representative or agent of Customer, of the Test Articles and/or any other substances upon which the Services were performed or any use made of the Products, (ii) any infringement of any third party’s intellectual property rights or unauthorized use or misappropriation of its know- how or trade secrets, (iii) Customer’s negligence, willful misconduct, or breach of this agreement, or (iv) personal injury related to contact with the Products during visits to AVS Bio’s facilities or after delivery of the Products to Customer. AVS Bio will give prompt written notice to Customer of a Claim and may participate in the defense of such Claim at its own expense. Notwithstanding the
foregoing, Customer shall not agree to any settlement without AVS Bio’s prior written consent.
11. Insurance
Each party will have insurance sufficient to cover its interest or potential liabilities hereunder including, but not limited to, worker’s compensation, if applicable, and comprehensive general liability.
12. Confidentiality
In the course of providing the Products or performing the Services, AVS Bio and Customer may exchange proprietary and confidential information. The parties will identify such information as confidential and/or proprietary.
If a party intends to disclose confidential information to the other party orally, the disclosing party will: (i) alert the other party of the confidential nature of the disclosure prior to the disclosure and (ii) provide written notice to the other party of the confidential nature and contents of such disclosure within ten (10) days of the original disclosure. Each party will use its commercially reasonable efforts to maintain such information in confidence and will employ reasonable and appropriate procedures to prevent its unauthorized disclosure. Neither party will use the other party’s proprietary and/or confidential information other than in performance of this Agreement. These obligations of confidentiality will survive termination or expiration of the Terms and Conditions for a period of five (5) years.
These confidentiality provisions will not apply to any information that(i) is known to the receiving party at the time it was obtained from the disclosing party; (ii) is acquired by receiving party from a third party, and such third party did not obtain such information under an obligation not to disclose; (iii) is or becomes in the public domain other than by violation of these Terms and Conditions by the receiving party; (iv) is independently developed by the receiving party without reference to or reliance upon the information provided by the disclosing party; or (v) is required to be disclosed by the receiving party to comply with applicable laws; provided that the receiving party provides prompt written notice of such disclosure to the disclosing party and cooperates with the disclosing party’s reasonable and lawful actions to avoid and/or minimize the extent of such disclosure, at the disclosing party’s expense.
13. Termination
Either party may terminate these Terms and Conditions or SOW, as applicable, at any time upon thirty (30) days prior written notice to the other party, for material breach of the Terms and Conditions by the other party if such breach is not remedied within the thirty (30) day notice period.
Upon termination, neither party will have any further obligations, except that (i) the liabilities accrued through the date of termination and (ii) the obligations which by their terms survive termination, will survive termination. Absent a material breach by a party, any SOW or PO hereunder may not be terminated by the other party.
14. Force Majeure
Except with respect to the payment of any amount due hereunder, neither party will be in default of any obligation to the extent that the performance of such obligation is prevented or delayed by fire, flood, earthquake, hurricane, explosion, disease, contamination, strike, acts of terrorism, war, insurrection, embargo, government requirement, pandemic or epidemic, civil or military authority, animal activism, act of God, or any other event, occurrence or condition which is not caused, in whole or in part, by that party, and which is beyond the reasonable control of that party.
15. Governing Law and Dispute Resolution
These Terms and Conditions and any dispute arising from or in connection with the sale of the Products and/or Services are governed by, and will be construed in accordance with, the laws of Delaware, excluding the United Nations Convention on the International Sale of Goods and without regard to any choice of law principle that would dictate the application of the law of another jurisdiction.
The parties will attempt to resolve through negotiations any controversy, claim, or dispute. All disputes hereunder will be resolved by binding arbitration. If the negotiations are not successful, upon written demand of either party, the claim, controversy or dispute will be submitted to arbitration. Such arbitration will take place in Hartford, CT, will be conducted in English, and will proceed in accordance with the United Nations Commission on International Trade Law Arbitration Rules in force from time to time. A record and transcript of the proceedings will be maintained. Any award will be made in writing. The determination of a majority of the panel of arbitrators will be the decision of the arbitrators, which will be binding regardless of whether one of the parties fails or refuses to participate in the arbitration. The arbitrators will decide on the recovery of the costs of the arbitration, except expert and attorneys’ fees.
16. Miscellaneous
All notices from one party to the other will be in writing and addressed to the parties at the addresses set forth on the SOW, Master Service Agreement or Supply Agreement, as applicable. Notices will be sent by internet transmission, overnight courier, or certified mail, return receipt requested. All notices will be effective upon receipt.
The business relationship of AVS Bio to Customer is that of an independent contractor and not of a partnership, joint venture, employer, agent, or any other kind of relationship. Neither party shall have authority to contract for or bind the other party in any manner whatsoever.
These Terms and Conditions, and the rights and obligations hereunder, may not be assigned or transferred by either party without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section is null and void. Notwithstanding the above, AVS Bio may assign these Terms and Conditions to any successor organization resulting from a merger, acquisition, or other reorganization, or any sale of all or substantially all of such party’s assets.
These Terms and Conditions, together with the SOW , set forth the entire agreement and understanding between the parties, superseding any and all previous statements, negotiations, documents, agreements and understandings, whether oral or written, as to the subject matter hereof. All pre-printed terms on Customer’s documents of purchase, and any conflicting terms on Customer’s documents of purchase, shall be of no effect.
In the event that any one or more of the provisions contained in these Terms and Conditions is held to be invalid, illegal or unenforceable in any respect, that invalidity, illegality or unenforceability will not affect any other
17. Privacy
The privacy policy of AVS Bio can be found at https://www.avsbio.com/privacy.
18. Language
The parties acknowledge that they have required that the Terms and Conditions, as well as all documents, notices and legal proceedings executed, given or instituted pursuant to or relating directly or indirectly hereto, be drawn up in English.