GENERAL TERMS AND CONDITIONS
NOTICE: Sale of any products by Bloodworks (“Bloodworks”) is conditioned on Customer’s assent to these Terms and Conditions. Any acceptance of Bloodworks’ offer is limited to acceptance of these Terms and Conditions and Bloodworks objects to any additional or different terms proposed by Customer. Unless otherwise specified in any quotation from Bloodworks, Bloodworks’ quotation shall expire thirty (30) days from its date and may be modified or withdrawn by Bloodworks at any time before final acknowledgement of Customer’s Purchase Order.
- Definitions
- “Customer” means the entity issuing the Purchase Order for Products under these Terms.
- “Products” means the materials and other goods Bloodworks has agreed to supply to Customer under this Agreement.
- “Purchase Order” means the electronically generated or written document by Customer containing the commitment of Customer to purchase the Products, to which these Terms and Conditions shall apply.
- Applicability:
- These terms and conditions, including Bloodworks’ no return and cancellation fees policies, (collectively these “Terms”) are the only terms that govern the provision of Products by Bloodworks to Customer.
- When Customer places a Purchase Order (i.e., by checking the “agree to terms” button in the Bloodworks’ portal), Bloodworks will send Customer a notice confirming receipt of the Purchase Order and the details of Customer’s order (the “Order Confirmation”). The Order Confirmation solely serves to acknowledge that Bloodworks has received Customer’s Purchase Order, but does not constitute acceptance thereof. Purchase Orders placed by Customer may not be cancelled or rescheduled without Bloodworks’ prior written consent. Customer shall be solely responsible for the accuracy and completeness of its Purchase Order. Bloodworks reserves the right to reject any Purchase Order submitted by Customer for any reason.
- The accompanying order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern.
- Each Purchase Order shall be deemed accepted upon these Terms by Bloodworks upon dispatch of ordered Products, commencement of work on Products, or express written acknowledgement by Bloodworks recognizing the existence of an Agreement pertaining to the subject matter hereof (each, an “Acceptance”).
- These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, Purchase Order, or such terms. Provision of Products to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
- These Terms are subject to change without notice at any time, in Bloodworks’ sole discretion.
- Products: Bloodworks shall provide the Products to Customer as described in the Order Confirmation in accordance with these Terms.
- Standards for Performance: All Products will be provided in accordance with: (a) all applicable laws and regulations of the U.S. Food Drug and Cosmetic Act and all regulations and guidances promulgated pursuant thereto by the U.S. Food and Drug Administration (“FDA”) and (b) the Health Insurance Portability and Accountability Act of 1996, as codified in 45 CFR Parts 160 and 164 (“HIPAA”).
- Customer’s Obligations:
- Customer represents and warrants that it will use the Products for laboratory research ONLY, in accordance with a valid research protocol, and after having obtained all necessary IRB approvals. Customer represents and warrants that it will not use the Products for transfusion into humans or for further manufacturing or for any commercial purpose. Customer will allow use of Bloodworks’ Products only by members of Customer’s research team under direct supervision of the supervisor in charge, and only after such members have been informed of and agree to the provisions and restrictions stated herein.
- Customer agrees to use the Products in compliance with all applicable statutes, regulations and guidances. Customer shall obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Products before the date on which the Products are to be delivered.
- Customer understands that it shall handle all Products according to the “Universal Precautions” prescribed by the Centers for Disease Control and Prevention, even if a Product has tested negative on routine donor screening. Customer shall dispose of all Products in accordance with applicable Federal, State and local laws.
- Bloodworks reserves the right to deny shipment if it has reason to believe that the Products will be used for any purpose other than those set forth herein.
- Customer’s Acts or Omissions:
- In the event the Customer has to provide Bloodworks with information or meet other duties of cooperation for the execution of the order, it shall be essential that Bloodworks be able to rely on the accuracy, completeness and proper quality of the information and materials provided and the complete fulfillment of the duties of cooperation. As long as the Customer does not or does not properly meet the above-mentioned duties, Bloodworks shall be released from the obligation to perform.
- If Bloodworks’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Bloodworks shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay. Bloodworks reserves all further rights.
- Customer will not use Bloodworks’ name, trademark or logo without the express prior written consent of Bloodworks. Customer will not make public any announcement or other public statement concerning the existence of these Terms or the parties’ respective performance hereunder, without the express written permission of Bloodworks, which may be withheld in Bloodworks’ sole and absolute discretion, except as necessary to comply with applicable laws or regulations.
- Fees and Expenses; Payment Terms; Interest on Late Payments:
- In consideration of the provision of the Products by Bloodworks and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation, including but not limited to all shipping and transportation fees.
- Customer agrees to reimburse Bloodworks for all reasonable travel and out-of-pocket expenses incurred by Bloodworks in connection with the provision of the Products.
- Customer shall pay all invoiced amounts due to Bloodworks within thirty (30) days from the date of Bloodworks’ invoice. Customer shall make all payments hereunder in US dollars by wire transfer or ACH.
- In the event payments are not received by Bloodworks within thirty (30) days after becoming due, Bloodworks may:
- charge interest on any such unpaid amounts at a rate of one percent (1%) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
- suspend performance for all Products until payment has been made in full.
- Shipping: Products will be delivered to Customer F.O.B. Bloodworks point of shipment. Risk of loss and damage passes to Customer upon delivery to carrier. Bloodworks is not responsible for delivery delays due to reasons outside of its control, including acts of God, war (declared or undeclared), action of any governmental authority, riots, revolutions, fire, floods, explosions, sabotage, nuclear incidents, lightning, weather, earthquakes, storms, sinkholes, epidemics, pandemics, strikes, courier-declared national service disruptions, or courier-related delivery failures for whatever reason.
- Taxes: Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.
- Limitation on Use:
- Customer is aware that the Products distributed by Bloodworks are collected from volunteer donors who understand that their donation may be used for biomedical research purposes,
- Products are sold for laboratory Research Use Only, Not For Diagnostic or Therapeutic Use, are not to be administered to humans and should be considered potentially infectious for diseases. Customer will use Products only for internal research or test development and standardization and will not use Products for commercial or production purposes.
- Primary cell products shall be used in accordance with all applicable laws, rules and regulations, including, but not limited to, applicable privacy laws, and in accordance with any Product Information Sheet or any other label or document shipped with or otherwise associated with any of the Products.
- Any transfer of Bloodworks’ Products to any third party other than Customer requires prior written authorization from Bloodworks.
- Bloodworks will not be liable for the improper use of any biological product provided. Bloodworks delivers Products to academic teaching and research institutions, commercial enterprises, and scientific researchers for research use only. Customer is solely responsible for making sure that the way Customer uses the Products complies with applicable laws, regulations and governmental policies and for obtaining all necessary approvals, intellectual property rights, licenses and permissions that Customer may need related to your use.
- Research Cord Blood Unit (CBU): Any research cord blood unit (CBU) delivered pursuant to this Agreement is understood to be experimental in nature and may have hazardous properties. A research CBU (fresh or cryoprotected) is a human biologic that has not been tested for the presence of infectious disease markers (IDMs). Certain cryoprotected CBUs have undergone various tests, including IDMs by way of maternal sample testing. CBUs are designated as secondary use samples under and are not consented or approved for whole genome sequencing or creation of cell lines.
- Remnant Samples: Any research sample derived from a byproduct of Bloodworks’ FDA approved product collection or manufacturing (including, but not limited to, TRIMA® cone, CBU remnants, LRS Chamber, “diversion pouch” samples, testing remnants, as defined in the order form as “remnant samples”) delivered pursuant to this Agreement is understood to be experimental in nature and may have hazardous properties. Remnant and byproducts of manufacturing are designated as secondary use samples under and are not consented or approved for whole genome sequencing or creation of cell lines.
- No Resale: Customer shall not make Products or any portion of them, in any way, shape or form, including as a component of another product available for the purpose of further resale or alter or remove the Product label.
- Safety Statement: Customer acknowledges that some of the Products may be hazardous or could otherwise present a safety risk as may be outlined in any Safety Data Sheet, Product Information Sheet or any other label or document shipped with or otherwise associated with any of the Products. Customer agrees to use, store and otherwise handle the Products with such care and taking such safety precautions as is necessary or appropriate in each case. In no event shall Bloodworks be liable for any personal injury or any other damages arising from or as a result of use, handling, misuse or mishandling of the Products.
- Confidential Information:
- All non-public, confidential or proprietary information of Bloodworks, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Bloodworks to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Products and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the Bloodworks. Confidential Information does not include information that is:
- in the public domain;
- known to Customer at the time of disclosure; or
- rightfully obtained by Customer on a non-confidential basis from a third party.
- Customer agrees to use the Confidential Information only to make use of the Products.
- Bloodworks shall be entitled to injunctive relief for any violation of this Section 14.
- Indemnity: Customer shall, at your own expense, indemnify, defend and hold Bloodworks, its directors, officers, employees, agents, successors and assigns (“Bloodworks Indemnitees”), harmless from and against any and all losses, costs, damages and expenses (including, reasonable attorneys’ fees and other costs of defending any action) (collectively, “Losses”) that Bloodworks may incur in any way arising out of or relating to (a) any breach by Customer of your obligations under this Agreement, (b) any use of the Products not in compliance with this Agreement or the uses stated in the Product Information Sheets (if any), (c) any failure of Customer to comply with good laboratory practice, laws, regulations, guidelines or decisions in the handling or use of the Products, (d) any violation or infringement of any patent, trade secret, copyright, trademark, industrial design, licenses, or other intellectual or proprietary rights (“Intellectual Property Rights”) of a third party by Customer in the handling or use of the Products, or (e) any other use or misuse of the Products by Customer including without limitation any claim of product liability or any similar claim relating to the quality of the Products or an alleged defect or deficiency in the Products.
- Disclaimer of Warranties: BLOODWORKS MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- Limitation of Liability:
- IN NO EVENT SHALL BLOODWORKS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, ANY LOSS OR DAMAGE TO PROPERTY, ANY PERSONAL INJURY, ANY DAMAGE OR INJURY ARISING FROM OR AS A RESULT OF MISUSE OR ABUSE, OR THE IMPROPER STORAGE, USE BEYOND EXPIRATION DATE, ACCIDENTAL DAMAGE TO THE PRODUCT OR ANY COSTS ARISING FROM THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE, THE PRODUCT, OR OTHERWISE WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BLOOWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL BLOODWORKS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO BLOODWORKS PURSUANT TO THE APPLICABLE ORDER CONFIRMATION GIVING RISE TO THE CLAIM.
- For the avoidance of doubt, Bloodworks has no liability for Products if they are repackaged, relabeled, further manufactured, or used as starting materials or components of other products.
- Termination: In addition to any remedies that may be provided under this Agreement, Bloodworks may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
- fails to pay any amount when due under this Agreement;
- has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
- becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Insurance: Customer shall maintain professional and general liability coverage by either a policy or verification of applicable self-insured retention for their Trustees, Officers, Directors, employees and agents in the amount of One Million Dollars ($1,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) in the aggregate. Coverage shall be maintained continuously throughout the term of this Agreement and for no less than three (3) years after termination. Upon request, Customer shall deliver a certificate of insurance or other evidence of such insurance to Bloodworks.
- Waiver: No waiver by Bloodworks of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Bloodworks. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Force Majeure: Bloodworks shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Bloodworks including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Assignment: Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Bloodworks. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
- Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law: All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the state of Washington.
- Submission to Jurisdiction: Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the state of Washington in each case located in the City of Seattle and County of King, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- Severability: If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Customer’s acceptance of any order is subject to and expressly limited by these Terms and Conditions, and Customer’s acceptance of the Products shall be deemed agreement to these Terms and Conditions. While Bloodworks may accept purchase orders from Customer for administrative convenience at its discretion, Customer understands and agrees that the terms of any such purchase orders that purport to replace, modify or supplement the terms of these Terms shall have no effect. These Terms shall apply to the exclusion of all other terms and conditions, and Bloodworks shall not be bound by any terms or conditions contained in any Purchase Order, acknowledgement, acceptance or other documents submitted by Customer which propose any terms or conditions in addition to or differing from these Terms and Conditions, irrespective of whether any of the same are in written or electronic form, and objection is hereby made to any such terms and conditions of customer. Bloodworks failure subsequently to object to such terms and conditions contained in Customer’s documents shall not be deemed a waiver of any of these Terms herein set forth, which shall constitute the entire agreement between the parties.