Terms of Service
GENERAL TERMS AND CONDITIONS OF SALE OF PRODUCTS OF NCARDIA SERVICES B.V.
Ncardia Terms and Conditions for the Sale of Products
1.1. The Ncardia Terms and Conditions for the Sale of Products (“Product Terms and Conditions”) shall apply to and form part of every agreement (“Agreement”) for the purchase of Ncardia’s off the shelf cell model kits comprising cryopreserved cells and/or culture media (“Products”) concluded between Ncardia Services B.V. a limited liability company, incorporated in the Netherlands and having an address at Galileiweg 8, 2333 BD, Leiden, the Netherlands (“Ncardia”) and the legal entity purchasing Products (“Customer”). Products supplied by Ncardia are for professional research use only, and Ncardia does not deliver Products to natural persons.
1.2. If the Customer is purchasing Products from Ncardia, and is also engaging Ncardia, or a company affiliated with Ncardia, for the provision of services, then these Product Terms and Conditions shall apply to the purchasing of Products only, i.e. only to the purchase of off the shelf cell model kits and/or culture media, and the provision of services shall be governed by the terms and conditions contained in the work order or service agreement for such services. If a customer is purchasing products that are customized for a customer, i.e. made specifically to the specifications or request of the customer, this will be treated as the provision of services and the customer will sign a work order or service agreement governing the manufacturing of such products. Any GMP-manufacturing of products by (an affiliate of) Ncardia will be subject to a separate agreement between Ncardia and a customer.
1.3. The Product Terms and Conditions supersede any and all terms of prior oral and written quotations, communications, agreements and understandings of the parties in respect of the sale and delivery of the Products and apply in preference to and supersede any and all terms and conditions of any order placed by the Customer and any other terms and conditions submitted by the Customer. Ncardia explicitly rejects the applicability of any general (purchase) conditions used by the Customer and failure by Ncardia to object to the terms and conditions set by the Customer in a specific case will in no event be construed as an acceptance of any of the terms and conditions of the Customer. Deviations from these Product Terms and Conditions will only apply if and to the extent that they have been explicitly agreed to in writing by Ncardia. If any provision of these Products Terms and Conditions is or is held to be invalid or unenforceable, then so far as it is invalid or unenforceable it has no effect and is deemed not to be included in the General Conditions; this shall not invalidate any of the remaining provisions hereof and the parties shall use reasonable efforts to replace the invalid or unenforceable provision by a valid provision, the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision. If, according to the Agreement concluded between the parties, the Customer consists of several legal entities, each of these legal entities is and will be jointly and severally liable towards Ncardia for performance of the Agreement.
1.4. Any documented electronic communication between Ncardia and the Customer will be effective as originals and e-mail or other electronic written communication is considered to be writing between the parties. The electronic communication system used by Ncardia serves as sole proof for the content and the time of delivery and receipt of such electronic communications. Information from Ncardia’s records count as conclusive evidence with respect to the deliveries made by Ncardia and the amounts owed by Customer in relation thereto, without prejudice to the Customer’s right to produce evidence to the contrary.
1.5. These Product Terms and Conditions are exclusively governed by, and construed in accordance with, the laws of the Netherlands. The United Nations Convention on Contracts for International Sale of Goods (CISG) does not apply. All disputes arising out or in connection with these Product Terms and Conditions will in first instance be settled by the competent court in Amsterdam, the Netherlands, while Ncardia reserves the right to bring any dispute before the courts of the Customer’s place of residence.
2. Ordering and payment
2.1. Quotations issued by Ncardia are valid for 30 days or such other period specified in the quotation concerned.
2.2. After acceptance of the quotation by the Customer, or placement of an order through the webshop at www.ncardia.com, an Agreement shall only be concluded when Ncardia has subsequently confirmed acceptance of the order in writing to the Customer. Ncardia may at its sole discretion decide whether or not to accept any orders, and acceptance may be subject to credit approval by Ncardia and/or the requirement to pay in advance. Ncardia shall be under no obligation whatsoever to accept any purchase orders unilaterally issued by a (potential) customer. Third parties cannot derive any rights from quotations issued by Ncardia to a specific Customer, or from Agreements concluded between Ncardia and a Customer.
2.3. The Customer may cancel the Agreement until Ncardia has initiated shipment of the Products. If payment was already processed before cancellation, Ncardia shall have the payment refunded.
2.4. Customer shall pay Ncardia the price stated in the accepted quotation or in the order confirmation provided in case of ordering through the webshop. Ncardia shall issue an invoice, which shall reference the number of the accepted quotation and/or the purchase order issued by the Customer, as well as the number and modality of the ordered Products.
2.5. All prices and fees are in Euros, and excluding value-added tax (‘VAT’) and duties (including export or import duties), permits and licenses, freight or insurance and inspection and any other taxes or government levies, as well as costs for transport and delivery, which are borne by the Customer unless explicitly stated otherwise.
2.6. Invoices must be settled in Euro’s on Ncardia’s bank account as a cleared payment within thirty (30) days from the date of the invoice. Ncardia is entitled to, without prejudice to any other rights of Ncardia, charge interest on any overdue payment at two percent (2%) per month from the due date computed on a daily basis until all outstanding amounts are paid in full. All costs and expenses incurred by Ncardia with respect to the collection of overdue payments (including, without limitation, reasonable attorney fees, expert fees, court costs and other expenses of litigation) are for the Customer’s account, and payments made by Customer will first be applied against such costs and expenses and the accrued interest, if any, and then against the oldest outstanding claim.
2.7. If any portion of an invoice is disputed, then Customer shall pay the undisputed amounts and the parties shall use good faith efforts to reconcile the disputed amount as soon as practicable.
3. Delivery and acceptance
3.1. Ncardia will deliver the Products in accordance with the modalities (packaging, temperature, etc.) as set out by Ncardia in the quotation or on Ncardia’s website, as applicable.
3.2. Delivery to the Customer is made DAP (Delivered at Place, Incoterms 2020). The risk of loss, theft, misappropriation or damage of items, will pass to the Customer at the time at which the Products are delivered at the Customer’s designated address. Shipping costs shall be paid by the Customer and added to the invoice. If Ncardia ships the products using dedicated cryogenic containers, these containers shall remain the property of Ncardia and must be returned to Ncardia after receipt of the Products. Customer must, at its cost, ensure return of such container in the condition in which they were received, except for normal wear and tear, within ten (10) business days of receipt of the product by the Customer. In case the Customer fails to return the containers within ten (10) business days, Ncardia shall be entitled to charge the Customer a fee of EUR 5.000,- to cover the costs of replacement and handling and administrative charges.
3.3. The Customer may be requested to accept partial delivery of the Products. Delivery dates or deadlines are always indicative and non-binding. Late deliveries shall not justify refusal of the Products by the Customer, nor will they justify a claim against Ncardia for damages, price reduction or otherwise.
3.4. In case Ncardia’s performance is hindered by government actions, change in legislation or policy, war, riots, strikes, lock-outs, fire, breakdown of machines, inadequate supply of materials or energy, interruption in transport or any other circumstances beyond Ncardia’s control, Ncardia may, at its option, suspend or rescind the Agreement.
3.5. Customer shall inspect the Product supplied hereunder immediately after delivery and if it finds that the Products fail to conform with the technical specifications set forth in the applicable Certificate of Analysis (as can be found on Ncardia’s website at https://www.ncardia.com/resources/overview/#certificate-of-analysis) the Customer must report these deviations without delay and ultimately within five (5) days of delivery, in writing in a clear, detailed and comprehensible manner, accompanied with sound and reproducible evidence of the deviation concerned. Subject to section 6, Ncardia will use reasonable efforts to fix deviations or replace the Product concerned with a confirming Product within a reasonable term. Customer's failure to give notice to Ncardia of any claim within five (5) days after the date of delivery shall constitute unqualified acceptance of the product and a waiver by Customer of all claims with respect thereto.
4. Restrictions of use of Products
4.1. The Customer will use the Products acquired for internal research purposes only, subject to the restrictions of use set out herein, solely benefiting the Customer. No other right is granted to the Customer whether expressly, by implication, by estoppel or otherwise. In particular, the purchase of the Products does not include nor carry any right or license to use, develop or otherwise exploit the Products commercially, and no rights are conveyed to the Customer to use the Products for any other purpose than internal research. Without prejudice to the foregoing, Customer agrees not to use the Products (i) to provide drug or other therapy screening or discovery services to any third party, or (ii) in the manufacture of any compounds, materials or other products.
4.2. The Customer agrees to use the Products in compliance with all applicable laws, statutes and regulations, but not to use the Products for research involving administration and/or use of Products for human or animal therapeutic, diagnostic and/or prophylactic purposes including but not limited to clinical applications, cell therapy, transplantation, and/or regenerative medicine (whether or not such administration and/or use would be authorized under applicable law).
4.3. The Customer agrees not to sell, donate or otherwise transfer the Products to a third party, nor to place the Products under the custody of a third party. Furthermore, where such a medium is available, the Customer agrees to apply to the Product only the appropriate Ncardia culture medium, excluding any other medium or product originated from the Customer and/or a third party.
4.4. The restrictions set forth herein apply to the Products, their components and the derivatives of the Products and their components.
4.5. Ncardia will make available to Customer a manual of use, and where required, a Material Safety Data Sheet (MSDS) for each Product delivered to Customer. Customer will familiarize itself with all information and precautions, including but not limited to such related to safety and health, contained in the product manual and/or MSDSs or otherwise transmitted to Customer by Ncardia at any time. Customer assumes full liability and responsibility for compliance with the above-referenced information and precautions, and with all laws, statutes, and regulations applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, sale and use of each Product.
4.6. Customer is not entitled to receive any data or information from Ncardia that directly identifies the donor of the biological materials from which any of the Products indirectly are derived or was made (a “Donor”). Customer shall not attempt in any way to determine the identity of a Donor of the biological materials (including through the use of genomic data or any data generated from the Products, “Identifying Data”) from which any of the Products indirectly are derived or was made. Customer shall not attempt in any way to determine the identity of any biological relative of a Donor of the biological materials (including through the use of Identifying Data) from which any of the Products indirectly are derived or was made. Customer shall not publish (e.g., by posting or making available through open-access public websites and/or databases) the Identifying Data of a Donor or any biological relative of a Donor.
5. Intellectual Property
5.1. The Products sold hereunder may embody and/or incorporate intellectual property rights developed by Ncardia and (sub)licensed by Ncardia from one or more third parties. The Products may contain cells derived from human induced pluripotent stem cells that are subject to a non-exclusive license agreement between Ncardia and iPS Academia Japan Inc. (on behalf of Kyoto University). Customer acknowledges and agrees that the receipt or purchase of the Products by Customer shall not be construed as a transfer of any title or the grant of any rights in or to the intellectual property embodied in the Products owned or licensed by Ncardia. In particular, no right or license to make, have made, offer to sell, or sell or reproduce any of the Products is implied or conveyed by the sale or transfer of Products to Customer. Customer is solely responsible for obtaining any licenses it may require for Customer’s specific research use(s) of the Products including any use(s) of the Products in combination with any other products.
5.2. Customer is explicitly prohibited to analyse, (de)compile, modify, edit, format, improve, reproduce, derive from, reverse engineer, transfer, disassemble, distribute, market and/or sell, in whole or in part Ncardia’s Products, protocols or procedures. Without prejudice to the foregoing, any improvements made by Customer to technology owned or controlled by Ncardia as embodied in the Products and/or the corresponding documentation, shall be assigned to Ncardia.
5.3. The Customer may not remove or change, or have removed or changed, any notice or legend concerning the confidential nature of or concerning the copyrights, brands, trade names or any other intellectual property right pertaining to the Products, websites, data files, equipment or materials.
6. Limitation of Liability; indemnification
6.1. Except for the limited warranty that Products will conform to the technical specifications set forth in the applicable Certificate of Analysis until one (1) year after delivery, all Products are delivered by Ncardia “as is” and without warranty of any kind. Ncardia explicitly excludes all implied warranties of title, non-infringement, merchantability and fitness for a particular purpose. Ncardia does not warrant that the Products are suitable for actual use and/or the intended use.
6.2. Except for Ncardia’s gross negligence or wilful misconduct and to the extent permitted by applicable laws, Ncardia's total liability for damages shall never exceed the sum stipulated for the Products to which the damage pertains, and Customer's exclusive remedy for any cause of action associated with an Agreement, whether based in tort, contract, strict liability or any other legal theory is expressly limited to replacement of nonconforming Product or payment of an amount not to exceed the purchase price of the specific Product for which damages are claimed, at Ncardia's option. In no event shall Ncardia be liable for any indirect, incidental, special, punitive, consequential damages or other damages, including without limitation loss of profits, loss of turnover, loss of prospective profits, incidental, cost or expense, work stoppage, delay in delivery, lost sales or profit, and/or damages resulting from production failure, impairment of other goods, anticipated sales or goodwill or damages based on any other cause. Without prejudice to the foregoing, Ncardia’s total liability for loss due to death or bodily injury or as a result of material damage to items will never amount to more than EUR 1.000.000 (one million Euro’s). In any event, a claim will be unenforceable and lapse unless the Customer initiates legal proceedings within a period of 1 (one) year after the Customer has first notified Ncardia.
6.3. Furthermore, Ncardia is not liable for damages, including but not limited to damages related to the infringement of third-party intellectual property rights, resulting from the use of the Products (or any modifications Customer makes to the Products or any cells or other materials derived, developed or expanded from the Products) by the Customer. Customer further agrees to protect, defend and hold harmless Ncardia, including any of its affiliated entities, and their current and/or former directors, officers, employees and agents from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including reasonable attorneys' fees and other costs of defending any action), penalties, and judgments (each, a "Claim") associated with the processing, transportation, delivery, unloading, discharge, storage, handling, disposition, application, sale, or use of any Product (or any modifications Customer makes to the Products or any cells or other materials derived, developed or expanded from the Products) and/or data generated therewith after delivery, including, without limiting the generality of the foregoing, Claims associated with infringement of any third party's intellectual property rights, unless a Claim is the direct result of a Product’s failure to meet the specifications set forth in the applicable Certificate of Analysis or the gross negligence or wilful misconduct of Ncardia.
6.4. Customer further specifically agrees to defend, indemnify and hold harmless Ncardia, iPS Academia Japan Inc. and Kyoto University, their affiliated entities, the inventors of the licensed patents and their directors, officers, employees and agents (together, the ‘Indemnified Entities’) from and against any and all Claims that any of the Indemnified Entities may sustain or incur as a result of any claim of a third party based on the negligence, recklessness or wilful misconduct of the Customer or any of its employees or agents in performing its obligations or exercising the rights, including the license to use, as granted pursuant to the Agreement.
Shipment policy: Ncardia cells and the supplements contained in cell culture kits require shipment under low-temperature conditions in order to maintain product quality. We utilize liquid nitrogen dry shippers in order to maintain these conditions through the process of international shipment, customs, and arrival at your site. Shipping costs are 1750.00 euro for shipment of one kit, up to 167 kits when purchased in a single order for most countries in Europe, Asia and North America. For shipments to Canada, Mexico and Puerto Rico, as well as most regions in the rest of the world, shipment costs will be 3500.00 euro per order for 1-167 kits due to additional time and expense related to import requirements in those areas. If placing an order for more than 167 kits please contact us directly for shipment costs.