Terms and Conditions
Standard Terms & Conditions
Edition November 2023
These are the Standard Terms and Conditions (“Terms”) under which Lunaphore Technologies, S.A. and Lunaphore Technologies, Inc. as well as other entities within Bio-Techne Corporation (collectively, “Lunaphore“) sell Products and Services (as defined below). Customer will be subject to these Terms regardless of what method is used to submit its offer to purchase Products and/or Services (“Order”). Some of the Products and Services are subject to intellectual property licenses, software licenses, or other contract terms that Customer will not find here (“Supplementary Terms”). If such Supplementary Terms exist for the Products and Services being purchased, they will be found in a quotation, order acknowledgment, Product insert, or written agreement that accompanies or is associated with the Products and Services. If Customer is uncertain if any Supplementary Terms exist for Products and Services, Customer should contact Lunaphore’s Customer Service. The Order, these Terms, and Supplementary Terms (if any) are collectively and individually referred to herein as the Agreement (“Agreement”). Any reference to other business terms is void and null. Lunaphore’s acceptance of any Order by Customer is expressly conditioned on Customer’s agreement to these Terms. Lunaphore will not be bound by, and specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) which is proffered by Customer in any order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Lunaphore specifically agrees to such provision in a written instrument signed by Lunaphore.
Definitions
“Product” means Lunaphore-provided hardware, including instruments such as COMETTM and LabSatTM; software, such as Lunaphore HORIZONTM; consumables, such as chips, reagents, antibodies, buffers; and kits, such as SPYRETM. A Product may be either a Product manufactured by Lunaphore or a Third-Party Product.
“Services” means installation, training, maintenance, repair, access to Lunaphore’s laboratory, and any other services provided by Lunaphore or any authorized third party on Lunaphore’s behalf.
“Software” means any Lunaphore-labelled software or firmware source code, together with associated material which is available for license.
“Third-Party Product” means a product manufactured or edited by a third party and procured by Lunaphore on Customer’s behalf. Examples include compressors, PT modules, computers, and/or third-party software.
1. Products
The Order will specify which Products are being purchased.
1.1 Third-Party Products. By placing an Order for any Third-Party Product, Customer acknowledges and agrees to adhere to any Supplementary Terms provided by the original manufacturer, as applicable to the respective Third-Party Product. It is understood that such Supplementary Terms take precedence over the provisions outlined in these Terms.
1.2 Software. By placing an Order for Software, Customer acknowledges and agrees to the Supplementary Terms specified in the corresponding Software license agreement, also available through this link.
1.3 Delivery. Unless otherwise specified in the Order, Products are shipped FCA Incoterm 2020 from Lunaphore’s facilities located in Switzerland. Customer shall pay or reimburse Lunaphore for all transportation, freight, import / export customs, insurance, loading, packaging and handling charges, taxes, duties, fees, storage and all other charges applicable to the delivery oft he Products. All shipments are subject to availability, and Lunaphore may ship in installments. Customer hereby acknowledges that shipping periods are approximate and agrees that Lunaphore shall not be liable for any damages or penalties for delay in delivery or for failure to give notice of delay for any reason. Customer is eligible to acquire any Software and accompanying documentation through electronic download, contingent upon Lunaphore receiving any necessary documentation. The delivery of the Software shall be deemed complete on the date when Lunaphore furnishes download instructions to Customer.
1.4 Risk of loss and damage. Risk of loss or damage shall pass to Customer upon delivery of Products to the carrier selected by Lunaphore. Any claims concerning damage or loss of Products in transit shall be placed through the delivery carrier or agent by Customer.
1.5 Quality and inspection check. Customer is responsible for a quality and completeness check of a Product delivery immediately upon arrival, except when a package is marked with a sticker specifying “Do Not Open – This package may only be opened by Lunaphore or a Lunaphore authorized agent” or similar instructions. When a package is thus marked, Customer shall only perform a visual check of the quality of the external packaging immediately upon arrival; opening the package will automatically void the Product warranty.
1.6 Repair and replacement. If Customer rejects any portion of the Products for a defect or nonconformity, Customer has the right, effective upon written notice to Lunaphore, to require Lunaphore to repair the Products at no additional cost and delay payment for that portion until such defect or nonconformity is corrected. If a repair is not possible, Lunaphore will promptly replace the defective or nonconforming Products and Customer shall promptly ship the defective Products back to Lunaphore, at Lunaphore’s cost.
2. Services
The Order will specify which Services are being purchased.
2.1 General. Services may be provided at Customer’s site and/or remotely. Each party is responsible for ensuring timely and effective collaboration with the other party. Customer shall furnish Lunaphore with adequate resources, information, and access to the site and equipment necessary for the proper provision of Services; Customer’s failure or delay in meeting this obligation may lead to delay of the Services and additional costs to Customer.
2.2 Installation & Training. When an Order includes installation Services for any instruments (“Installation“), Customer agrees to:
(i) following delivery, facilitate Installation at the specified installation site address provided in the Order;
(ii) ensure, at its own expense, that all necessary conditions are in place for Installation;
(iii) notify Lunaphore once the preparatory work for Installation has been completed; and
(iv) designate a competent contact person on-site, available at the agreed-upon time of Installation.
After the date of Installation (“Installation Date”), Customer must designate at least one Product user, and all Customer users of the Product must attend a mandatory training session at Customer’s site (“Training”). Customer shall not use the instruments until Customer’s users have attended the Training.
2.3 Acceptance. Immediately after Installation and Training, Customer shall sign Lunaphore’s acceptance protocol (the “Acceptance”); the dates of Installation and Training shall be specified in the Acceptance. The Acceptance shall be deemed executed by Customer three (3) business days after completion of the Training; only a defect that substantially impairs the use of the installed Product, without any feasible workaround solution, may result in Customer’s non-acceptance, and Lunaphore undertakes to promptly rectify any such defect. For clarity, the Acceptance shall not affect Lunaphore’s warranty obligations.
2.4 Maintenance & Repair. When included in an Order, the start date and initial term or duration of Lunaphore’s maintenance services and repair services on a Product (“Maintenance Services” and “Repair Services“) will be explicitly specified. Upon request, Maintenance Services provide Customer with one on-site preventive visit per contracted period, encompassing a functional check of the Product, recalibration of components, and replacement of necessary parts.
Maintenance Services and Repair Services explicitly exclude consumables, third-party products, and software upgrades (i.e., changes in version). Customer shall strictly adhere to any recommended practices provided by Lunaphore and the instructions outlined in the user manual for the Product; failure to comply with such obligations may result in additional charges for Maintenance Services and Repair Services.
2.5 Scientific Lab Services. When included in an Order, the start date, duration, and the number of hours for Lunaphore’s scientific laboratory services (“Scientific Lab Services“) will be clearly specified. The Scientific Lab Services grant Customer access to a predetermined package of hours provided by Lunaphore’s scientific team upon Customer’s request. The specific purpose of these services will be mutually agreed upon and detailed in the Order. The need for a separate consulting service agreement for such services will be determined by the parties.
If the parties decide to conduct on-site Scientific Lab Services at Customer’s premises, the number of hours will be calculated in 8 hour blocks. Customer is responsible for reimbursing any reasonable professional expenses, including travel and accommodation incurred by Lunaphore’s personnel. Lunaphore reserves the right to accept, reduce, or refuse on-site Scientific Lab Services based on its workload capacity and personnel availability.
Lunaphore will maintain a record of the hours spent on Scientific Lab Services, which will be shared with Customer upon request. Upon the conclusion of Scientific Lab Services, Customer acknowledges and agrees that any unused remaining hours will be forfeited, with no right to reimbursement or compensation. At its discretion, Lunaphore may issue a credit note for unused Scientific Lab Services.
Notwithstanding Section 4.1, unless expressly stated in the Order or agreed upon in a separate written contract between the parties, Customer retains exclusive ownership of the data generated during Scientific Lab Services, along with any derivatives or modifications of Customer materials produced as a direct result of such services.
Unless otherwise agreed in writing by the parties, the know-how gained during the performance of Scientific Consulting Services, such as the optimization of instrument settings, is the exclusive property of Lunaphore. This know-how may be reused for any purpose, including product development, commercialization, and the creation of marketing materials.
2.6 Access Lab Services. The type, nature, and the number of Lunaphore’s sample staining services (“Access Lab Services”) shall be specified in an Order. Through Access Lab Services, Lunaphore will process sample slides provided by Customer and subsequently return the resulting digital images to Customer. Residual sample slides will either be (i) destroyed or (ii) sent back to Customer upon request and at Customer’s expense.
Customer is responsible for arranging the shipment of the samples at its own cost. Customer represents and warrants that it possesses all rights and has obtained all necessary consents, approvals, licenses, and/or certifications as required by applicable laws to collect and transfer any sample slide or clinical patient data to Lunaphore, and that Lunaphore’s use of such slides and data solely for the purposes of providing Access Lab Services will not constitute an infringement of third-party intellectual property or privacy rights. To the extent applicable, all sample slides and patient data shall be coded and de-identified by Customer prior to transfer to Lunaphore in accordance with HIPAA privacy standards under 45 CFR § 164.514 (a), (b) and (c) and similar applicable legislation.
Digital images, data, and results generated through Access Lab Services are the property of Customer. Lunaphore has the right to retain archives of Customer’s digital images. With the written consent of Customer, Lunaphore may use these images for scientific marketing materials.
Unless otherwise agreed in writing by the parties, the know-how gained during the performance of Access Lab Services, such as the optimization of instrument protocol parameters, is the exclusive property of Lunaphore. This know-how may be reused for any purpose, including product development, commercialization, and the creation of marketing materials.
The expected completion time for Access Lab Services will be specified in the Order. Both parties acknowledge and agree that Access Lab Services may not commence until Lunaphore receives Customer’s sample slides. Unless otherwise agreed, Customer shall not use Access Lab Services for the purpose of comparing and publishing technology results obtained through the use of any competing product.
3. Payment conditions
3.1 Prices. Prices mentioned in the initial quotation are not final and may be subject to changes based on the shipping conditions specified by the Customer in a subsequent purchase order. Unless otherwise specified in an Order, prices exclude insurance, freight, shipping, import / export customs and costs related to special packaging requests, all of which are payable by Customer.
3.2 Taxes. By default, Order amounts are stated exclusive of VAT, and any applicable VAT will be added to the invoice. Unless the Order explicitly specifies otherwise, Customer is responsible for paying all relevant charges, including taxes, customs duties, levies, and/or fees imposed by any authority under this Agreement. Unless otherwise specified in the Order, Lunaphore’s invoicing will adhere to the following: (i) for additional Products and Services included with the purchase of a Product, Order-related amounts are invoiced immediately upon shipment of the Product; (ii) for Services, Order-related amounts are invoiced by Lunaphore within fifteen (15) days of completion of the Services, and if the Services are recurring, periodically as agreed with Customer (monthly, weekly, etc.). Lunaphore may require advance payment or securities from Customer.
3.3 Payment terms. Unless the Order specifies otherwise, all amounts are due upon receipt of the invoice and must be paid without any set-off or deduction within thirty (30) days from the invoice date.
3.4 Late payment. In the event of late payment, a reminder fee of CHF 40, or the equivalent in other currencies, shall become immediately due. The total outstanding amount will be increased by an annual late payment fee of 12%, prorated from the invoice date until the date payment is actually received, or, if less, the maximum amount allowed by law. Customer agrees to immediately pay this late charge upon request.
3.5 Securities. Lunaphore may choose to retain a security interest in all Products sold to Customer to secure all of Customer’s obligations to Lunaphore under this Agreement. Upon Order confirmation, Customer will execute any necessary documents to create and perfect this interest.
3.6 Validity of the Offer. An Offer made by Lunaphore is irrevocable during the term stated in the Offer. If no term is stated in the Offer, the Offer shall remain valid for a period of thirty (30) calendar days from the date of submission.
4. Title of ownership
Lunaphore transfers full title of the Product to Customer upon effective delivery of the Product.
5. Intellectual property rights
5.1 General. As between the parties, all intellectual property rights relating to any Products and/or Services are solely and exclusively owned by Lunaphore. Customer shall not dispute Lunaphore’s ownership of any such intellectual property rights at any time. Illustrations, drawings, user manuals, and other documents provided with the Products and/or Services may not be utilized, copied, reproduced, or shared with third parties without the prior written consent of Lunaphore. Customer acknowledges that Lunaphore is free to use, for any purpose, any knowledge (such as ideas, concepts, know-how, and techniques, among others) acquired during the performance of Services in intangible form, which may be retained in the unaided memories of the personnel performing the Services. Unless expressly stated or agreed otherwise, nothing in these Terms or in the Order shall be construed as granting any rights to Customer regarding any intellectual property rights related to Third-Party Products.
5.2 Lunaphore Software. Unless otherwise agreed by the parties, all Software will be copyrighted and licensed (not sold) to Customer. Lunaphore grants Customer a limited, non-transferable, and non-exclusive right to use the Software for its intended application, contingent upon the payment of all related fees and charges and subject to a specific Software license agreement governing the terms and conditions of the license.
5.3 Lunaphore Products. With respect to any Lunaphore Product, Customer shall:
(i) adhere to and reproduce copyright notices and other markings as indicated by Lunaphore;
(ii) ensure that anyone using the Lunaphore Product is adequately trained and does so exclusively for Customer’s authorized use, strictly in accordance with the Lunaphore Product’s designated use and license;
(iii) refrain from reverse engineering, decompiling, disassembling, or attempting to discover the source code, sequencing, design, parts, or structure of the Lunaphore Product; and
(iv) avoid using any components of the Lunaphore Product or related licensed material separately from the Lunaphore Product.
5.4 Patent Disclaimer/Indemnity. Lunaphore does not represent or warrant that the use or sale of the Products delivered hereunder does not or will not infringe the claims of any United States or other patent covering the use thereof in combination with other products or in the operation of any process. Additionally, Customer shall indemnify Lunaphore and its affiliates from any legal action that may result from Customer’s use of any Product under this Agreement.
6. Warranties
6.1 Coverage. Unless an additional warranty service is expressly contracted, Lunaphore shall provide Customer with a default 12-month warranty (“Warranty Period”) on Lunaphore Products. During the Warranty Period, Lunaphore warrants that the Lunaphore Products will operate in substantial conformance with their specifications and will be free from material defects under normal use. In case of instruments, the Warranty Period commences on the Installation Date. In case of consumables or Software, the Warranty Period commences on the delivery date. Following the conclusion of this 12-month period, any additional contracted warranty service period will begin (“Extended Period”).
Lunaphore warrants that Services will be performed in a skillful and workmanlike manner by professionally qualified personnel in conformance with generally accepted professional standards of care and conduct.
For Products subject to an expiration date, such as consumables, Lunaphore warrants that these Products will substantially conform to the standard specifications up to the expiration date.
6.2 Reporting defects. During the Warranty Period and any Extended Period, any defects in Lunaphore Products must be reported to Lunaphore in writing and as soon as reasonably possible, but no later than thirty (30) days from the date of discovery. Provided Customer reports the defect in a timely manner, Lunaphore, at its sole discretion, will either repair, replace, or prorate reimbursement for defects. Lunaphore shall determine whether the Lunaphore Product is to be repaired at Customer’s site or off-site. Repair or replacement will not suspend or prolong the original warranty period.
Lunaphore’s warranty applies only if Customer’s use of the Product is in conformity with standard specifications, user manuals, and Lunaphore-provided instructions. If Lunaphore determines that the warranty claim by Customer is not justified (i.e., not covered by the Lunaphore warranty), belated, or not formally correct, Customer shall be responsible for all related investigation, remedy, reasonable expenses (including travel and accommodation expenses), and shipping fees.
For applicable Third-Party Products, any third-party warranties will be forwarded to Customer for its direct benefit with regard to the third-party manufacturer. In these cases, Lunaphore commits to assist during the warranty claim process but Customer must pursue such warranties with the applicable third-party manufacturer.
6.3 Exclusions. Lunaphore does not warrant uninterrupted or error-free operation of a Product or Service, and it disclaims responsibility for third-party disruptions or unauthorized third-party access to a Product or Service.
Lunaphore does not guarantee any delivery dates and shall not be held responsible for any loss or damage arising from any delay in delivery, regardless of the cause of such delay.
Any Product whose installation, calibration, maintenance, other modification, or repair has not been performed by Lunaphore or an authorized agent is not covered by any Lunaphore warranty.
Lunaphore warranties do not apply in cases of damage not caused by Lunaphore, defects and faults attributable to natural wear and tear, accidents, neglect, misuse, failure of utility supply, improper storage, transportation, or cleaning, failure to comply with instructions, specifications, or user manuals provided by Lunaphore, or any other deviation from the Agreement. Unless otherwise stated in the Order (i.e., applicable Incoterm), Customer is responsible for damages or defects caused during the transportation of the Products.
For clarity, Services are provided without any warranty other than as set forth in Section 6.1. Lunaphore makes no other warranties, express or implied, regarding any matter whatsoever, including without limitation the condition, originality, or accuracy of such Services, or of any discovery or development relating to such Services, or as to the accuracy, merchantability, or fitness of any such result based on Services for any particular purpose.
These are the sole and exclusive warranties provided by Lunaphore, replacing all other warranties, including implied warranties applicable by default under applicable law. Any warranties as to noninfringement of any intellectual property and fitness for a particular purpose are expressly excluded. Lunaphore does not provide any further warranties for Products or Services.
6.4 Remedies for breach of Warranty. Subject to this Section 6, with respect to any breach of any Lunaphore warranty during the Warranty Period or Extended Period, Customer shall be entitled to the remedies specified for non-conforming Products in Section 1.6.
7. Limitation of liability
EXCEPT TO THE EXTENT CAUSED BY LUNAPHORE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR REQUIRED BY APPLICABLE LAW, LUNAPHORE SHALL HAVE NO LIABILITY FOR ANY LOSS OF USE OR PROFITS, LOST DATA, EQUIPMENT DOWNTIME, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF LUNAPHORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LUNAPHORE’S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER TO LUNAPHORE FOR THE PRODUCTS OR SERVICES. CUSTOMER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE PRODUCTS AND SERVICES AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.
Should a third party bring an action against any entity of Lunaphore relating to defects in a delivered Product or rendered Service, Lunaphore shall be entitled to determine the scope of the actions necessary for a defense irrespective of the responsibility to assume the costs. Customer undertakes to support Lunaphore in such defense in every respect.
Should a claim against Lunaphore be attributable in whole or in part to misuse, off-label use, improper handling of materials (including sample slides) or non-observance of the instructions and user manuals on part of Customer, Customer shall indemnify Lunaphore and its affiliates for all expenses (including reasonable attorneys’ fee) incurred and pay directly or reimburse Lunaphore for any damages allocated to the third party.
8. Insurance
Lunaphore shall maintain in force, during the term of this Agreement and at its own cost and expense, standard insurance coverage for the industry. This coverage shall include, but is not limited to, general liability that incorporates product liability, with a minimum amount of CHF 2,000,000 (or its equivalent in USD) for any loss resulting from the conduct of Lunaphore pursuant to this Agreement. Additionally, Lunaphore shall maintain errors and omissions insurance, with limits of at least CHF 2,000,000 (or its equivalent in USD) for any one occurrence or series of occurrences arising from any one incident or accident.
Upon Customer’s request, Lunaphore shall provide evidence of such insurance and, if required subject to separate agreed conditions, may name Customer as an additional insured.
9. Cancellation period
Once Customer places an Order, the Order will only be cancelable within a period of twenty-four (24) hours after submission of the Order.
10. Termination
Either party may terminate this Agreement immediately for cause if the other is in material breach of the Agreement, provided the breaching party is given notice and reasonable time to comply. In case of payment not received in due time, Lunaphore reserves its right to cancel Services and pending Orders. Any terms that by their nature extend beyond the Agreement termination shall survive any termination or expiration of this Agreement.
11. Force majeure events
Any delay or failure of either party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such party’s control, without such party’s fault or negligence and that by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, or acts of terrorism) (each, a “Force Majeure Event”). The affected party shall give the other party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event but no later than five (5) business days of such Force Majeure Event, and the anticipated duration of such Force Majeure Event. The affected party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of the Force Majeure Event are minimized, and resume full performance under this Agreement. If a Force Majeure Event affecting the performance of this Agreement continues for more than ninety (90) consecutive calendar days, then the other party may terminate this Agreement upon written notice. If Customer terminates this Agreement for a Force Majeure Event, Customer shall make payment for the Products received / Services rendered and accepted by Customer prior to the termination.
12. Regulatory Related
12.1 Research Use Only. Products referred to or labelled as “Research Use Only” are intended solely for research use and, in particular, are not intended for use in clinical diagnostics. Lunaphore makes no claim that such Products provide information for, or are suitable for use in, diagnosis, prevention, monitoring, prediction, prognosis, treatment, or alleviation of disease.
12.2 Products Marketed for In Vitro Diagnostic Use. Products marketed by Lunaphore for IVD use have been cleared by the FDA, and CE marked in the European Union, for IVD use. No license is conveyed or implied for Customer to use, and Customer agrees not to use, such Products in any manner requiring other regulatory approval, clearance or registration relating to IVD use.
12.3 Beta and Early Access Products.
If any Product is a beta, technology access, early access, or other precommercial release version (“Pre-release Product“), then this Section applies, and shall supersede any conflicting term in the Agreement. Customer acknowledges that the Pre-release Product is a pre-release version, does not represent final product from Lunaphore, and may contain defects, bugs, errors and other problems that could cause system or other failures, sample loss and data loss. CONSEQUENTLY, ANY PRE-RELEASE PRODUCT IS PROVIDED TO CUSTOMER “AS IS”, AND LUNAPHORE DISCLAIMS ALL WARRANTIES (INCLUDING THE LIMITED WARRANTY SET FORTH IN SECTION 6.1) AND ALL LIABILITY OBLIGATIONS TO CUSTOMER OF ANY KIND. Customer acknowledges that Lunaphore has not promised or guaranteed to Customer that the Pre-release Product will be announced or made available to anyone in the future, that Lunaphore has no express or implied obligation to Customer to announce or introduce the Pre-release Product, and that Lunaphore may elect not to introduce a product similar to or compatible with the Pre-release Product. Accordingly, Customer acknowledges that any research or development that Customer performs using the Pre-release Product or any product associated with the Pre-release Product is done entirely at Customer’s own risk.
12.4 Disclaimer. Lunaphore does not undertake to perform any of Customer’s own regulatory obligations, nor assume any responsibility for Customer’s business or operations. Customer is solely responsible for its use of Services and Products. Customer is solely responsible for obtaining all necessary approvals, permissions and/or licenses or intellectual property rights from applicable third parties as may be required for Customer’s research and any other intended uses. It is solely Customer’s responsibility to make sure the Products and Services are suitable for Customer’s particular use.
13. Use Restrictions
Except as otherwise approved by Lunaphore in writing, Customer shall not: (i) resell any Product, (ii) transfer or distribute any Product, directly or indirectly, to any third party for any purpose or use, or (iii) use the Products, Services and/or Software solely for technology comparison to any other similar or competing product, service and/or software.
14. Export Controls
Customer acknowledges that the Products and related materials may be subject to export controls under the U.S. Export Administration Regulations and related U.S. laws. Customer will (i) strictly comply with all legal requirements established under these controls, (ii) cooperate fully with Lunaphore in any official or unofficial audit or inspection that relates to these controls, and (iii) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product or related technical documents or materials or any direct product thereof to any country (or to any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of Lunaphore and the applicable U.S. Government agency. Customer represents and warrants that it is not designated on, or associated with any party designated on, any of the United States government restricted parties lists, including without limitation, the United States Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the United States Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the United States State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Customer shall comply with all applicable United States economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC.
Lunaphore may terminate this Agreement and discontinue any ongoing supply to or business with Customer immediately, without notice and without liability, upon Lunaphore becoming aware that Customer, or any party associated with Customer, is named on any restricted party list.
15. Confidentiality
The parties agree that the Product and Service pricing as well as the terms and conditions offered herein are confidential and proprietary to Lunaphore, and Customer shall maintain in confidence and not disclose such confidential information to any third party, except as required to do so by law or for the purposes of disclosing or providing to Customer’s employees, attorneys, accountants, consultants, group purchasing organizations, and other third parties retained by or related to Customer to the extent such disclosure is required in order for such recipient parties to perform their roles or responsibilities on behalf of Customer and provided that such persons and entites are subject to confidentiality obligations; Customer will be responsible for the compliance of such persons and entities with the obligations herein. If Customer breaches this Section, Lunaphore may rescind or terminate any unexecuted quote or agreement or executed quote or agreement immediately and may seek any and all remedies available to it as a result of this breach including injunctive relief and damages. If further confidential information is disclosed among the parties, the parties shall enter into a separate confidentiality agreement.
Lunaphore maintains the privacy of its customers’ information in compliance with relevant law and in accordance with its privacy policy, as posted on its website and amended from time to time.
16. Third-party subcontractors
Lunaphore may use personnel and resources in other locations or third-party contractors to support the delivery of Products and Services. Lunaphore remains responsible in the event that it uses third party contractors for Services. Both parties are independent companies, and each party is responsible for determining the assignment of its own personnel and contractors, and for their direction, control, and compensation.
17. Assignment
Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other, except that each party may assign it in the event of a change of control relating to operations of sale, acquisition, merger, take-over, transformation, demerger, wind-up implying the transfer or liquidation of the majority of the assets, voting rights or stock of a corporation. Assignment of Lunaphore rights to receive payments is not restricted.
18. Anti-bribery & Anti-corruption
Each party shall comply with all applicable anti-corruption and anti-bribery laws and regulations, including but not limited to, the United States Foreign Corrupt Practices Act (FCPA) and United Kingdom Bribery Act (collectively, “Anti-Bribery Laws”). Neither party shall cause the other or its representatives or agents to be in breach of any Anti-Bribery Laws. In providing and purchasing the Products and Services, each party (i) agrees not to, directly or indirectly, offer to make, promise, authorize or accept any payment or anything of value, including bribes, gifts and/or donations to or from any public official, regulatory authorities or anyone else for the purpose of influencing, inducing or rewarding any act, omission or decision in order to secure an improper advantage, including to obtain or retain business, and (ii) shall comply with all Anti-Bribery Laws. Each party shall notify the other or its representatives or agents immediately upon becoming aware of any breach under this Section.
19. Notice
Any notice must be in writing and sent to the address on the Order, unless a party designates a different address in writing.
20. Applicable law and competent jurisdiction
If an Order is placed with Lunaphore Technologies, S.A, any dispute or claim arising out of or in relation to the Agreement shall be governed by and construed in accordance with the laws of Switzerland (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). The sole jurisdiction and venue for actions related to the subject matter hereof shall be the courts located in Lausanne (Switzerland), provided that Lunaphore may elect, at its option, to bring action in the courts for the location of Customer’s principal office) and Customer consents to the jurisdiction of such courts with respect to any such action.
If an Order is placed with Lunaphore Technologies, Inc. or to any other Bio-Techne Corporation entity with a registered address in United States, any dispute or claim arising out of or in relation to the Agreement shall be governed by and construed in accordance with the laws of the State of New York (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). The sole jurisdiction and venue for actions related to the subject matter hereof shall be the courts located in New York (US), provided that Lunaphore may elect, at its option, to bring action in the courts for the location of Customer’s principal office) and Customer consents to the jurisdiction of such courts with respect to any such action.
21. Entirety
If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect. Nothing in the Agreement affects statutory rights that cannot be waived or limited by contract. The Agreement supersedes any course of discussions between the parties. No oral statements, recommendations or assistance given by a representative and/or distributor of Lunaphore to Customer or its representatives in connection with the use of the Products or Services will constitute a waiver by Lunaphore of any of the provisions hereof. Lunaphore’s failure to exercise any rights under this Agreement is not a waiver of its rights to damages for Customer’s breach of contract and is not a waiver of any subsequent breach.
22. Authority
In executing this Agreement, each party represents and warrants that the person executing this Agreement is duly authorized and has legal capacity to enter into this Agreement, that this Agreement forms a valid and legal agreement binding on such party, and that this Agreement is enforceable in accordance with its terms.
23. Counterparts and electronic execution
The parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement. The Agreement may be delivered electronically or by facsimile transmission, and the parties hereby agree that any electronic or facsimile signatures hereto (i.e DocuSign or any other valid method) are legal, valid and enforceable as originals.