1. General
1.1 The Terms and Conditions of Services and Sales (the “Terms”) shall apply to all sales of services and microbial genomics-related products (the “Product”) between mBioWorks ApS (“mBioWorks”) and the customers (“Customer”). Other conditions or reservations of the Customer are binding only if mBioWorks acknowledges them in writing.
1.2 The Terms shall remain in force for cases where the Terms are not enclosed in a written agreement or contract but have been brought to the Customer’s attention by mBioWorks.
1.3 All agreements, except these Terms, and legally relevant declarations by the contracting parties are valid only if agreed in a written form and signed by both Customer and mBioWorks. If a discrepancy occurs between contractual provisions and the Terms, the contractual provisions shall prevail.
2. Execution of Contract
2.1 A contract for the sale and purchase of the Services (“Contract”) shall only be valid upon acceptance (“Order”) by mBioWorks in a written form or upon the issuance of an invoice to the Customer.
2.2 Deviations from the items in the Order or the invoice shall become an integral part of the Contract unless a dispute is initiated in writing by the Customer within three (3) business days of receipt of the Order or invoice. mBioWorks reserves the right to correct errors in an invoice.
3. Scope and Pricing
3.1 Sales and services are executed according to the quantities, delivery standards, and prices set out in the Contract.
4. Delivery
4.1 Project completion and delivery of deliverables shall occur according to the time frame set out in the Contract.
4.2 Deviations from the above term of delivery must be expressly stated in mBioWorks’ final project report or invoice.
4.3 If a delivery is delayed beyond the time limit stated in the Contract, mBioWorks shall charge no fees to the Customer and refund any prepayment if applicable.
4.4 If mBioWorks cannot deliver on time or at all due to circumstances beyond its control (force majeure) occurring at mBioWorks or its suppliers, mBioWorks shall have the right to withdraw from the Contract in whole or in part. mBioWorks reserves the right to effect partial deliveries.
5. Handling of Customer Samples
5.1 For projects involving DNA extraction or other laboratory services requiring receipt of Customer-provided biological materials, mBioWorks may take custody of original biological samples, aliquots, derivatives, extracts and any residual material derived therefrom (collectively, the “Samples”) solely for the purpose of performing the agreed Services.
5.2 Customer represents and warrants that it has all necessary rights, permissions, approvals and lawful authority to provide the Samples to mBioWorks for handling, storage, processing, analysis and disposal in accordance with the Contract, these Terms, and applicable laws, regulations and industry standards.
5.3 Unless otherwise expressly agreed in writing, mBioWorks shall store Samples only for the period reasonably necessary to perform the Services, quality control procedures, internal verification steps and related operational activities connected to the relevant project.
5.4 Unless otherwise agreed in writing, mBioWorks shall retain original biological Samples and any residual material for a maximum period of three (3) months following project completion. Upon expiry of such retention period, mBioWorks may, at its sole discretion and without further notice, discard and destroy the Samples in accordance with applicable biosafety, laboratory, environmental and waste-disposal requirements.
5.5 The default retention period stated in Section 5.4 applies unless the parties have agreed in writing to sample return, extended storage, biobanking, or any other alternative custody arrangement. Any such additional services may be subject to separate fees, conditions, storage limitations and operational requirements.
5.6 Unless otherwise agreed in writing, mBioWorks shall have no obligation to return any original Samples, residual material, extracts, libraries, intermediates or related materials to the Customer after completion of the Services.
5.7 mBioWorks shall use commercially reasonable measures, consistent with general industry practice, to handle, label, process, store and dispose of Samples. However, due to the inherent nature of biological materials, mBioWorks does not guarantee the integrity, stability, viability, recoverability or suitability of any Sample before, during or after processing and storage.
5.8 Customer acknowledges that certain laboratory procedures, including but not limited to DNA extraction, sample preparation, quality control and sequencing workflows, may consume, alter, deplete or destroy part or all of the Samples in the ordinary course of performance of the Services. Such consumption or destruction shall not constitute damage, loss or non-performance by mBioWorks.
5.9 Customer shall be responsible for ensuring that all Samples are lawfully collected, packaged, labelled and shipped, and that all required hazard information and handling instructions are provided to mBioWorks prior to shipment or delivery. mBioWorks reserves the right to reject, suspend handling of, or dispose of any Samples that are improperly packaged, insufficiently identified, hazardous beyond disclosed specifications, non-compliant with applicable law, or otherwise unsuitable for the agreed Services.
6. Passage of Risk and Title
6.1 Title and risk shall pass to Customer upon the earlier of 1) disposal of the goods at the agreed place of disposal or delivery; or 2) the designated delivery date if disposal or delivery failed to occur due to circumstances at the Customer’s side.
6.2 Notwithstanding delivery, the ownership of the Product remains with mBioWorks until Customer’s full payment is received. In case of lack of payment, in whole or in part, or if mBioWorks anticipates Customer’s inability to make a timely payment: 1) Customer shall, at its risk and expense, return the Product upon demand of mBioWorks; or 2) if the said return does not occur within a reasonable time or is otherwise impracticable, mBioWorks may, at the Customer’s full risk and expense, use any means to resell the Product or to recover them or any sum outstanding. These rights are without prejudice to mBioWorks’ other rights herein, at law and otherwise.
7. Inspection and Acceptance
7.1 Customer shall immediately carry out a thorough inspection of the delivered Product upon receipt and shall notify mBioWorks without delay and in any case within three (3) business days if any of the Product does not visibly conform with its specifications and to these conditions, including but not limited to damages due to temperature fluctuation. The Customer shall notify mBioWorks of any other quality-related issues in a timely manner and, in any case, within thirty (30) days from the date of receipt. mBioWorks disclaims any liability, and Customer waives all rights of recovery if Customer fails to submit a valid claim as described above or fails to report defects or problems that Customer should have easily detected.
8. Use of Product
8.1 Unless expressly designated in a written form, the Product is intended only for professional use, including and limited to laboratory use, not for diagnostic purposes.
8.2 Customer shall, in any resale or other distribution of the Product, ensure that all relevant information accompanies the Product, including but not limited to safety information, and shall, at its own risk, secure all limitations of liability found herein. If Customer fails to do so, Customer shall hold harmless and indemnify mBioWorks for any claim against mBioWorks.
8.3 Unless otherwise agreed, the delivered Product and packaging cannot be returned to mBioWorks.
9. Recall of Product
9.1 Customer shall maintain records for the Product as required by law, customs and practice so that mBioWorks can track and recall the Product.
9.2 mBioWorks may recall the Product for a good cause. Both parties shall use their best efforts to recall the Product. The party whose error or omission caused the recall shall bear the costs. If mBioWorks caused the recall, it shall, at its discretion, provide a replacement of the Product or refund the purchase price.
10. Withdrawal of Service
10.1 Customer and mBioWorks must respect the signed, legally-binding contract during the project period. Both parties shall agree upon any party withdrawal from the agreement before a such withdrawal can take effect. A party is entitled to compensation from the other party withdrawing from the agreement. The size of the compensation shall not exceed the service fee agreed on in the contract or the amount allowed by the laws, whichever is smaller.
10.2 If the cause of withdrawal is beyond the control of both parties, e.g. natural disaster, war, or significant delay in or abrupt disruption to the supply chain that is not related to mBioWorks, both parties can withdraw from the agreement by informing the other party in a written form without bearing financial and legal responsibilities.
11. Terms of Payment
11.1 The Customer shall pay the service fee to the mBioWorks‘ bank account specified in Section 11.3 in full or designated instalments in the Contract.
11.2 All payments set forth on the invoice are due within 30 days from the date of the invoice. mBioWorks may impose a service charge on past due amounts between one and one-half per cent (1.5%) and three per cent (3%) per month, not to exceed the maximum amount permitted by law. Upon the Customer’s request, mBioWorks shall provide a statement within ten (10) days. Approved payment not in Danish kroner (DKK) shall be at the DKK exchange rate published by the Danish National Bank on the due date.
11.3 Bank account details:
Account Name: mBioWorks ApS
Account no.: 3409 13413053
Bank: Danske Bank
Swift code: DABADKKK
BIC code: DABADKKKXXX
IBAN: DK4330000013413053
12. Limited Warranty & Liability
12.1 mBioWorks warrants that the Product is manufactured or serviced according to general industry standards and mBioWorks’ claimed specifications and instructions for the Product’s use (the “Warranty”). In case of defects or other non-conformity, mBioWorks may, at its discretion, either replace the defective or non-conforming Product or reimburse the Customer for an amount equaling the purchase price for the product in question. This Warranty is the sole warranty provided as regards the Product, replacing and superseding all other warranties, whether express or implied by law, trade, customs, or otherwise, and the remedies described herein are the exclusive remedies of Customer in case of defects or non-conformity.
12.2 Recovery under the Warranty is subject to Customer proving actual loss, mBioWorks’ breach of the Warranty, and demonstrating that Customer stored, transported, handled and used the Product in accordance with mBioWorks’ specifications and other written and oral instructions, as well as complied with all relevant laws, rules and guidelines, and general industry standards and practices.
12.3 To the extent permitted by law, mBioWorks shall, regardless of cause, bear no liability for damage to Customer’s or a third party’s property or losses relating to it.
12.4 Notwithstanding the above, mBioWorks shall bear no liability for any loss or damage arising from or related to side effects caused by the Product but generally deemed as reasonably acceptable under relevant circumstances, whether or not a side effect was known or foreseeable, and including but not limited to side effects warned of in mBioWorks’ written information. The Customer waives all such claims.
12.5 mBioWorks shall in no cases, regardless of cause, be liable for any indirect, special, punitive or consequential losses or damages, including but not limited to loss of profit, loss of business, and legal costs or fees, regardless of whether the Customer or a third party suffers such losses or damages. For the avoidance of doubt, this limited liability shall apply regardless of the basis on which such losses or damages are based, including but not limited to delay, defects, product liability, professional liability, contract, warranty and tort.
12.6 In respect of all third-party claims, including but not limited to negligence, death or personal injury, Customer shall, to the extent permitted by law, hold harmless and indemnify mBioWorks fully against any claims, costs and fees exceeding mBioWorks’ applicable limits of liability expressed elsewhere herein.
13. Law & Jurisdiction
13.1 As permitted by law, mBioWorks and Customer waive all international trade provisions.
13.2 These Terms shall be governed and construed in accordance with the laws of Denmark.
13.3 Any dispute, controversy or claim arising from or in connection with these Terms, including any questions regarding their existence, validity or termination, shall be referred to and finally resolved by arbitration under the “Rules of Procedure of the Danish Institute of Arbitration” (“Danish Arbitration”), whose rules are deemed to be incorporated by reference into this section. The language used in the arbitral proceedings shall be English, but the parties shall be entitled to produce documents without translation in English and Danish. The arbitral tribunal shall be composed of three (3) arbitrators appointed by the Danish Institute of Arbitration.
13.4 Notwithstanding the above, Customer shall, on request from mBioWorks, assist or become formally involved as a party, as the case may require, in any dispute between a third party and mBioWorks regardless of the jurisdiction, the venue and the language for such dispute.
