Standard terms

These Terms apply whenever InsituGen supplies Products and/or Services to the Customer, unless expressly agreed otherwise in writing. By accepting a Quote for the supply of Products and/or Services from InsituGen, the Customer will be deemed to have accepted these Terms.

Part A of these Terms applies to all Products and Services; and

Part B of these Terms applies to Products only.

DEFINITIONS
- Business Day means a day on which registered banks are open for general banking business, other than a Saturday, Sunday or statutory holiday, in Dunedin, New Zealand;
- Event of Default means an event where (a) you breach any provision of these Terms (or any other agreement with us), (b) you suffer any bankruptcy or insolvency event (including the appointment of any liquidator, receiver, administrator or similar officer in respect of your assets; the passing of any resolution, the filing of any proceedings or the making of any order for the liquidation, receivership, administration, bankruptcy, winding-up or dissolution of you; the entry by you into any compromise or arrangement with its creditors; or the occurrence of any analogous event under the laws of any applicable jurisdiction) or (c) any event occurs or information becomes known to us which, in our opinion, might materially affect your creditworthiness, the value of the Products or your ability or willingness to comply with your obligations under these Terms (or any other agreement with us);
- Force Majeure means circumstances beyond our reasonable control including; act of God; war; acts of terrorism; nuclear fusion; epidemics or pandemics; fire; explosions; flood; subsidence; insurrection or civil disorder; government restraint; expropriation; prohibition; intervention; direction or embargo; strikes; lock-outs or other industrial disputes of any kind; failures or fluctuations in electrical power; heat or light;
- InsituGen means InsituGen Limited. We, us or our have a corresponding meaning;
- Intellectual Property Rights means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, anywhere in the world whether or not registered;
- Marks means our company, business and trading name(s), logos and mark(s), including “InsituGen” and “FirstFlagX”;
- Materials has the meaning as defined in clause 5.1;
- Order means your acceptance of a valid Quote for Products and/or Services and delivery of Materials in accordance with these Terms;
- Price means the price and any other applicable charges for Products and/or Services: (a) set out in a valid Quote which is properly accepted under these Terms; or (b) at our then current standard rates for the relevant Products and/or Services, available from us at request;
- Products means any Products supplied by us to you, including any advice or recommendations in relation to Products;
- PPSA means the Personal Property Securities Act 1999;
- Quote means the quotation provided by us to you relating to the supply of the Products and/or Services specified in that quotation (and as varied from time to time);
- Sanctions means any United Nations Security Council sanctions or any other export controls, embargoes, sanctions, prohibitions, restrictions or international boycotts of any type;
- Service means any testing services provided by us to you, including any associated certificate or report provided by us;
- Terms mean these Terms of Service as amended by us from time to time in accordance with these Terms; and
- You means the person that requested us to provide Services.

PART A: GENERAL TERMS

ORDERS
1. You may submit a request to us to supply Products and/or Services from time to time, in accordance with our order processes advised to you from time to time.
2. Following receipt of your request for Products and/or Services, we may issue a Quote. We may decline a request for Products and/or Services, in whole or in part, at our discretion.
3. To place a valid Order for Products and/or Services, you must:
  1. accept the Quote in writing within 7 days of us issuing the Quote; and
  2. in respect of Services, deliver the relevant Materials to us within 90 days of Quote acceptance.
4. Any Quote will lapse and cease to be valid if the timeframes set out in clause 2.3 are not met. We may withdraw any Quote before it is accepted by you.
5. An Order may not be cancelled by you, and you are bound to pay the Price and all other amounts payable under these Terms for that Order, after we have taken any step toward fulfilment of that Order (including any time after receipt by us of Materials for testing), unless we expressly agree otherwise in writing.
PRICE
1. You will pay us the Price for all Products and/or Services supplied by us.
2. Unless expressly agreed otherwise by us, Prices are in New Zealand dollars and exclusive of:
  1. any applicable taxes and duties, including goods and services tax chargeable under the Goods and Services Tax Act 1985;
  2. any freight or handling fees or insurance, and any other out of pocket expenses and disbursements incurred by us in connection with the supply of Products and/or Services, each of which is payable by you in addition to the Price.
PAYMENT
1. You must pay all amounts set out in each of our invoices in full, without any set-off or deduction, by the due date and in the manner specified on the invoice.
2. If no other payment terms are specified, our invoices must be paid in full in cleared funds to InsituGen’s nominated bank account (or by means of accredited charge cards approved in writing by us), by the 20th day of the month following the date of the invoice.
3. If any amount is not paid by you when due, you will pay interest on demand on the overdue amount at a rate of 5% per annum above our banker’s overdraft rate, calculated on a daily basis from the due date until payment is received in full.
4. We may deduct (without prior notice) any amount owed by you to us from any amount we owe to you (or that we hold on your behalf).
YOUR RESPONSIBILITIES
1. You will provide all relevant samples, documentation and information (Materials) and assistance reasonably required by us to enable us to provide the Services. You warrant that all samples you provide are safe for handling and testing and that all other Materials you provide are complete, accurate and not misleading and acknowledge that, in the absence of manifest error, we will be entitled to rely on the accuracy and sufficiency of such Materials.
2. You will not provide us with any false, inaccurate or misleading claim in respect of our Services or any certificate or report issued by us (and you must not permit or allow any other person to do the same).
3. You are responsible for:
  1. delivering all Materials to the address specified by us;
  2. complying with all reasonable requirements specified by us in respect of Materials; and
  3. interpreting and acting upon any test results reported by us.
OUR RESPONSIBILITIES
1. We will:
  1. use due skill, care and effort in providing the Services, using resources reasonably available to us; and
  2. use reasonable endeavours to supply our Services in accordance with any agreed timeframes, such as those timeframes specified in a Quote. However, any such timeframes are indicative only and we shall not be liable to you where the timeframe is not met.
2. In respect of Services:
  1. We will follow the testing methodology we consider to be appropriate in our discretion, or any specific methodology you request and we agree in writing to use (which may be subject to an additional charge).
  2. We will issue a certificate to you setting out the results of the specific tests that you have requested and that we have agreed to provide. We may, on request, provide you with a written report in relation to the Services.
  3. Following issue of our certificate and payment of the Price in full, you may use the “firstFlagX” Mark, solely in conjunction with the specific batch of product tested by us, to indicate that batch has been tested by us.
  4. The test results reported in a certificate or report issued by us contain InsituGen’s opinion based on the Material received from you and are subject to any assumptions, qualifications or limitations stated in the certificate/report.
  5. InsituGen’s test certificate or report is solely for the benefit of the named recipient and does not apply to, and InsituGen does not express any opinion on, anything other than the Material received (including any other batch or on the product generally), nor does the certificate or report imply that the Material or anything else complies with any applicable regulatory requirements, or any World Anti-Doping Agency or other drug testing authority protocols.
  6. We may retain routine non-perishable samples received by us in connection with the Services for at least 10 days after the issue of our certificate, after which we may dispose of the samples. All other samples will be disposed of by us as and when we see fit.
INTELLECTUAL PROPERTY RIGHTS
1. These Terms will not entitle either party to any right, title or interest in or to any Intellectual Property Rights owned by or licensed to the other party and existing as at the commencement of the relevant Services, or developed independently of the Services, including your Materials and our Marks.
2. You grant us a non-exclusive, royalty free licence to use any of your Intellectual Property Rights obtained by, or disclosed to, us: for provision of the Services; for the purpose of improving the Services; and for analytical purposes, provided that information relating to you will only be disclosed to a third party for analytical purposes in an anonymised and/or aggregated form.
3. You warrant that you have the right to grant the licence set out in clause 7.2 and you indemnify us for any losses, costs, liability or expenses suffered or incurred by us as a result of a breach of this warranty.
4. All Intellectual Property Rights, and all information and data, generated or developed by or on behalf of us in connection with the Services (including any testing methodology) will automatically vest in us and, except as expressly set out in these Terms, you will not obtain any rights or interests in such Intellectual Property Rights.
5. Your use of the “first FlagX” Mark must comply with any requirements we specify from time to time.
NO IMPLIED WARRANTIES
1. Except as set out in these Terms or otherwise expressly agreed in writing, all conditions, representations, warranties, terms and undertakings, whether express or implied, are excluded to the maximum extent permitted by law. Without limiting the preceding sentence, the Contract and Commercial Law Act 2017 is expressly excluded and we give no representation or warranty concerning any description, condition, quality or fitness for purpose of any Products and/or Services.
LIABILITY
1. To the maximum extent permitted by law, our liability to you is limited as follows:
  1. our liability is limited (at our option) to resupplying, or refunding the Price you paid for, the Products and/or Services that gave rise to the claim;
  2. our maximum aggregate liability arising out of or in connection with, these Terms or the supply of the Products and/or Services, whether in contract, tort (including negligence) or otherwise, is limited to the Price paid by you for the Products and/or Services that gave rise to the claim (or a maximum of USD300 if the claim does not relate to particular Products or Services);
  3. we exclude and accept no responsibility for any other loss, cost, damage, expense or liability of any sort whatsoever (whether arising in contract, tort (including negligence), equity or by statute or other legislation), including loss of revenue or profit, loss of goodwill, loss of customers, loss of capital, loss of anticipated savings, legal, tax or accounting compliance issues, damage to reputation, loss in connection with any other contract, or indirect, consequential, incidental, punitive, exemplary or special loss, damage or expense.
2. Notwithstanding any other provision of these Terms, in no event will we be liable, whether in contract, tort or otherwise, where:
  1. you have altered or modified any Products, misapplied any Products or subjected any Products to any unusual or non-recommended use, service or handling, or failed to take reasonable care of the Products; or
  2. any Products are not transported, stored, handled or used in accordance with any of our, or manufacturer, directions, including but not limited to instructions accompanying the Products or contained on labels or packaging
  3. any Materials are lost, damaged or contaminated prior to receipt by us.
3. Where Products and/or Services are acquired in trade, you acknowledge that the Consumer Guarantees Act 1993 does not apply.
4. Any and all claims in respect of the Products and/or Services or these Terms must be received by us in writing within seven days of delivery of the Products or completion of the Services (being the issue of a certificate in respect of the Services). Any claims not made within this timeframe will be invalid and we will have no liability whatsoever in respect of such claims.
5. You indemnify us from and against any cost, expense, loss, damage or liability suffered or incurred by us arising out of the Materials you provide to us in connection with any Services; your acts or omissions in respect of our Products and Services (including false, inaccurate or misleading claim in respect of our Services or any certificate or report issued by us); or any other breach by you of your obligations under these Terms.
FORCE MAJEURE
1. We will not be liable for any loss or damage, or any delay, act, omission or failure by us under these Terms, which is caused by Force Majeure.
EVENT OF DEFAULT AND TERMINATION
1. If an Event of Default occurs, then without limiting any other right or remedy we may have, we may:
  1. suspend or terminate any or all existing and future Orders and claim damages from you for all losses suffered by us;
  2. demand immediate payment by you of all amounts outstanding for any Order, whether or not then due for payment;
  3. refuse to deliver any certificates or reports or in relation to the Services, and/or any Products, until all amounts due are paid in full;
  4. suspend or cancel any certificate we have issued and/or any right to use any Mark; and
  5. take possession of and remove any Products for which we have not received payment in full and retain, re-sell or dispose of the Products in any manner and on such terms and conditions as we see fit.
2. Termination of any Order will not affect any provisions of these Terms which are expressed to, or by implication are intended to, survive termination of an Order.
PRIVACY
1. We may, in accordance with applicable law, collect and hold personal information about you from any source we consider appropriate for the purposes of administration and management of your accounts with us, market research, marketing, supplying and improving our Products and/or Services and any other purpose relating to these Terms.
2. You authorise us to:
  1. disclose your personal information to any third party; and
  2. transfer your personal information to any country, in connection with any of the purposes set out above.
3. You have a right of access to, and may request correction of, personal information held by us about you.
4. Please also read our privacy policy located at https://www.insitugen.com/privacy-policy/. Our privacy policy applies to all the information you provide to us and forms part of these Terms. By accepting these Terms, you also accept our privacy policy.
GENERAL
1. By requesting any Products or Services, you warrant that:
  1. you are not, and the supply by us of Products and Services to you is not and will not become, subject to any applicable Sanctions; and
  2. you will not sell or otherwise supply or transfer the Products to any person or country who is or becomes subject to any applicable Sanctions.
2. We may vary or replace these Terms from time to time. Any such variation will be effective from the date specified by us in any written notice provided to you or published on our website at https://www.insitugen.com/. We recommend you check our website regularly to ensure you are aware of our current Terms. By requesting or continuing to request, any Products and/or Services after such effective date, you accept and agree to be bound by such variation.
3. We may give notices or other communications under these Terms by hand, prepaid post or email.
4. We may assign or transfer these Terms, at sole discretion, without restriction. You may not assign or transfer your rights under these Terms without our prior written consent, which will not be unreasonably withheld or delayed.
5. These Terms, together with the relevant Quote and invoice, constitute the entire agreement between the parties for the supply of the Products and/or Services and supersede and exclude any previous representation, agreement, arrangement or correspondence on the matter, any terms or documents submitted by you and any terms implied by trade, custom, practice or course of dealing.
6. We may sub-contract part or all of the Services and in such case we will remain solely responsible for all obligations under these Terms.
7. Any dispute or difference arising out of or in connection with these Terms which cannot be resolved by negotiation may be referred by us to arbitration under the Arbitration Act 1996 (NZ) in Dunedin, New Zealand (unless the parties agree otherwise in writing) before an arbitrator agreed between the parties or, failing agreement, appointed by the President of the New Zealand Law Society. To avoid doubt, this clause shall not apply to any failure by you to pay any undisputed amount for which we may issue proceedings in any court of competent jurisdiction.
8. Nothing in these Terms constitutes a partnership, joint venture or relationship of employer and employee between the parties. Except as otherwise provided in these Terms or expressly authorised by us in writing, you may act or hold itself out as an agent or representative of us, nor assume or create any obligations on behalf of us.
9. Any waiver or variation of these Terms will not be effective unless and to the extent expressly agreed in writing by us.
10. If any provision of these Terms is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable, that provision will be amended to the extent necessary to make it legal, valid and enforceable without altering its meaning or intent or, if that is not possible, that provision will be severed from these Terms. In any event, the remaining provisions of these Terms will remain in full force and effect.
11. These Terms are governed by New Zealand law. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand.

PART B: TERMS APPLICABLE TO PRODUCTS ONLY

APPLICATION
1. Where Products are supplied to you, clauses 14 – 17 (inclusive) apply in addition to the General Terms.
DELIVERY
1. The Products will be supplied and delivered on the delivery basis specified on the relevant Quote (or as otherwise agreed in writing).
2. Any time stated for delivery is an estimate only. We are not liable for any delay in delivery (howsoever caused), nor for any failure to deliver caused by your failure to provide us with adequate delivery instructions or any other instructions relevant to the supply of the Products. Any such delay or failure does not give you a right to reject the Products.
RETURNS
1. Products may not be returned unless they are defective and clause 9 shall continue to apply in such cases.
RISK AND TITLE
1. Risk in the Products passes to you on delivery.
2. Ownership of and title to the Products is retained by us and shall not pass to you until we receive payment in full for all amounts due in respect of the Products.
3. Until title in the Products passes to you, you must:
  1. hold the Products as bailee of us;
  2. store the Products in a manner which will protect them from damage or deterioration, separately from your or any other person’s products or in a manner such that they are separately identifiable; and
  3. insure the Products against all risks for their full price from the date of delivery.
4. The retention of title clause above creates a security interest in the Products and their proceeds under the PPSA. You agree to sign such documents and do such other things as we may require in order to enable us to register and perfect that interest and obtain and maintain a first ranking priority position over the Products and their proceeds. To the maximum extent permitted by applicable law, the parties agree that:
  1. you waive any right to receive a verification statement under the PPSA in respect of the security interest created by these Terms;
  2. if the Products subsequently become part of some other product or mass, then nothing in these Terms can be construed as limiting the application of sections 82 to 86 of the PPSA;
  3. You waive and, with our agreement, contract out of your rights under the sections referred to in section 107(2) of the PPSA; and
  4. nothing in sections 114(1)(a), 133 and 134 of the PPSA applies to these Terms.