Terms and Conditions of Sales

AGREEMENT AND DEFINITIONS

These are the General Terms and Conditions (“Terms”) under which Countagen AB, a company incorporated in Sweden with business ID 559291-9681 (“Countagen”) sells its products (“Products”) and services (“Services”). A party purchasing Products (“Customer”) from Countagen or a Countagen authorized agent will be subject to these Terms regardless of what method is used to submit its offer to purchase Products (“Order”).

Some of Countagen’s Products and Services are subject to Intellectual Property licenses, or other contract terms that Customer will not find here (“Supplementary Terms”). If such Supplementary Terms exist for the Products being purchased, they will be found in a quotation, order acknowledgment, product insert, or written agreement that accompanies or is associated with the Products. If Customer is uncertain if any Supplementary Terms exist for Products, Customer should contact Countagen’s Customer Support. The Order, these Terms, and Supplementary Terms (if any) are sometimes collectively and individually referred to herein as the Agreement (“Agreement”).

Countagen agrees to use any Customer Confidential Information received from Customer for the exclusive purpose of producing the Products and offering the Services under this Agreement.

The Products and Services can only be purchased by companies and other legal entities. No consumers are entitled to purchase any Products from Countagen.

In the absence of an express written agreement to the contrary, all Products and Services are sold by Countagen for the exclusive use of the Customer and shall not to be resold, transferred, or conveyed, in whole or in part, to any other party.

The terms used in this Agreement shall have the following meaning:

“Confidential Information” means any of Countagen’s business information, drawings, designs and similar works or any other information which is disclosed by Countagen to Customer and labeled or marked as confidential, proprietary or its equivalent, or oral or visual information that is designated confidential, proprietary or its equivalent at the time of its disclosure.

“Customer Raw Data” means images, files and other data generated by Countagen Products and/or Services.

“Customer Results” means the information created as result of the analysis and processing of Customer Raw Data from the use of Countagen’s Products and/or Services.

 “Data” means any data received by Countagen from Customer and any data created by Countagen when processing Customer data.

“Documentation” means Countagen’s user manual, package insert, and similar documentation for the Product in effect on the date that the Product is sent from Countagen. Documentation may be provided with the Product when sent from Countagen or provided electronically from Countagen.

“Intellectual Property Rights” mean all inventions, patent applications, patents, trademarks, utility certificates and models, inventors’ certificates, copyrights, database rights, designs, names, trade secrets, know-how and any other proprietary rights, priority rights, prior user rights, rights in confidential information and all other rights of a like nature in each case whether registered or unregistered and in any jurisdiction.

“Product Specifications” means Countagen’s written technical specifications for the Product in effect on the date that the Product is sent from Countagen.

“Products” means Countagen’s product offerings from time to time.

“Service Specification” means Countagen’s written specifications for each service in effect on the date that the service is delivered.

“Services” means Countagen’s service offerings from time to time.

Order, Purchase and Sale

Countagen’s acceptance of any Order by Customer is expressly conditioned on Customer’s agreement to these Terms. This Agreement exclusively governs the ordering, purchase, supply, and use of Products, and prevail over any conflicting, amending and/or additional terms contained in any purchase order, invoice, or similar document all of which are hereby rejected and are null and void. Countagen’s failure to object to any such terms shall not constitute a waiver by Countagen, nor constitute acceptance by Countagen of such terms and conditions.

Countagen shall sell to Customer, and Customer shall accept and pay for, all Products ordered by Customer pursuant to an Order that has been accepted by Countagen. All Orders are subject to acceptance by Countagen either in writing or by shipping Products. Countagen may accept any Order in whole or in part.

Delivery

All domestic and international shipments shall be Ex Works Countagen’s Stockholm facility, according to INCOTERMS® 2020. Shipments are made in a commercially reasonable manner as determined by Countagen. Countagen will select the carrier but will not be deemed thereby to assume any liability in connection with the shipment nor will the carrier be construed to be an agent of Countagen. All shipments are subject to availability.

Shipment schedules are approximate and Countagen will use commercially reasonable efforts to complete shipments as indicated. Countagen shall not be liable for any damages or penalties for delay in delivery or for failure to give notice of delay for any reason. Claims for loss or damage of products in transit must be made to the carrier and not to Countagen.

A shipment of Products or delivery of Services will be deemed accurate, and hence, accepted by Customer upon reception of the Product/ delivery of the Service Customer Results if Customer does not make a complaint within a reasonable period, not to exceed ten (10) days following receipt. Countagen has no responsibility for the delivered items as regard performance and accuracy if not expressly stated in these Terms.

Price and Payment

Customer shall pay the prices specified in the applicable Order or, if no price is specified in the Order, the price set forth in Countagen’s standard price list in effect on the date that Countagen accepts the Order. All prices are subject to change without notice. 

Payment terms shall be net 30 days from the date of invoice and in the currency specified on the invoice. Customer will only be charged for products shipped. Products placed on back order will be charged when shipped. If Customer is late in making payment, Countagen may, without affecting any other rights or remedies, suspend delivery, cancel Orders, reject future orders, and/or charge a late payment fee, from the due date until paid, at the rate of one and a half percent (1.5%) per month (18% per year) or such lesser amount as is the maximum rate of interest allowed by law. Customer shall pay any and all reasonable costs, including attorneys’ fees, incurred by Countagen in collecting any delinquent balance.

Inspection and Returns

Customer shall immediately, on arrival of the Products, inspect the received Products in terms of quantity and quality. Any complaints are to be made by the Customer in writing and shall be received by Countagen at the latest ten (10) business days after the date of delivery, otherwise the Products will be deemed to have been accepted by Customer.

Customer can return Products that are damaged or defective upon delivery, but Customer must contact Countagen’s Customer Support within 10 business days from the day Customer received the Products. A return authorization (“Return Authorization”) must be obtained from Countagen for all returns. Countagen will not accept returns, and no credit will be issued, without a Return Authorization. Custom Orders are ineligible for cancellation or return.

If an error by Countagen results in shipment of incorrect Products, Countagen will, at its sole option, either ship, at no charge, the correct Products per Customer’s Order or credit Customer’s account for the purchase price of the Products shipped in error plus shipping charges. If an error by Customer results in the shipment of incorrect Products and is reported to Countagen within ten (10) business days, Customer may obtain a Return Authorization and return the incorrect Products for a credit less applicable Returned Product Charges.

Any return shipment must be made in the same commercially reasonable manner as the original shipment, and the Customer must follow Countagen’s guidelines following a Return Authorization. If an error by the Customer in the return shipment results in Products being deemed damaged by Countagen, any reimbursement will be void and the shipment costs charged to the Customer.

Privacy of Customer Data  and storage of Customer Results

Countagen maintains the privacy of Data and any other customer information in compliance with relevant law and in accordance with its Privacy Policy, as posted on its website and amended from time to time.

Products, Product Use and Restrictions

The Products are research use only, and not for human or animal therapeutic or diagnostic use and are provided on an “as-is” basis. Countagen makes no (and expressly disclaims all) warranties, express, implied or statutory, with respect to the Products, including without limitation, any implied warranty of merchantability, fitness for a particular purpose, noninfringement, or arising from course of performance, dealing, usage or trade. Without limiting the generality of the foregoing, Countagen makes no claim, representation, or warranty of any kind as to the utility of the Product for Customer’s intended uses.

As a material condition to Countagen providing its Products to Customer, Customer agrees that it shall not, directly or indirectly, attempt to reverse engineer, disassemble, or otherwise perform any compositional, structural, functional or other analyses directed to learning the methodology, components, formulae, processes, make-up, or production of any Product or any portion thereof.

Customer is aware and accepts that the Products may only be used for the Customer’s internal research and no clinical, therapeutic, diagnostic, or other non- research use of the Product is permitted. All use of the Products must follow the relevant Product Specifications and/or Documentation and the Products may only be used together with the reagents and consumable items explicitly recommended or specified or provided by Countagen.

Customer is solely responsible for complying with all applicable laws, regulations and governmental policies when using Countagen 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 are suitable for Customer’s particular use.

Limited Warranties

Unless a different written warranty is included with product inserts accompanying Products, Countagen warrants each Product will meet the applicable Product Specification when used appropriately under normal conditions. The warranty shall last from the time delivery is made until the Product’s expiration or “use by” date or its specified number of uses.

Countagen represents and warrants that it will provide Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the applicable Service Specification.

The limited warranties only cover issues caused by defects in material or workmanship during ordinary use. The limited warranties do not cover issues caused by any other reason, including but not limited to issues due to normal wear and tear, acts of God, misuse, limitations of technology, custom manufacture in accordance with specifications Customer gave Countagen, neglect or accident caused by Customer, contact with improperly used or unapproved chemicals or environments, or modifications of or to any part of a Product.

Countagen’s sole and exclusive liability to Customer and Customer’s sole and exclusive remedy for warranty claims hereunder shall be replacement of the non-conforming Product or refund of the purchase price for the defect Product or erroneous Service.

The above warranties are exclusive, and Countagen makes no other warranties or representation of any kind whatsoever, express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, of suitability, of non-infringement, or regarding results obtained through the use of any  Product or Service, whether arising from a statute or otherwise in law or from a course of performance, dealing or usage of trade, all of which are expressly disclaimed.  Our warranties extend only to the original Customer and cannot be transferred by the original Customer to any other party.

Limitations on Remedies

IN NO EVENT SHALL COUNTAGEN BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR EXEMPLARY DAMAGES OF ANY KIND, OR LOSS OF PROFITS OR REVENUE, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT COUNTAGEN WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS AND/OR ANY OTHER AGREEMENT BETWEEN COUNTAGEN AND CUSTOMER FOR THE PURCHASE OF THE PRODUCTS OR SERVICES, COUNTAGEN’S TOTAL LIABILITY TO CUSTOMER ARISING FROM OR IN RELATION TO THESE TERMS, AN AGREEMENT BETWEEN THE PARTIES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY PURCHASER TO COUNTAGEN FOR THE APPLICABLE PRODUCTS OR SERVICES.  IN NO EVENT WILL COUNTAGEN BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

Indemnification

Customer shall hold harmless, indemnify and defend (at Countagen’s request) Countagen for any and all damages, liabilities, costs and expenses (including any costs of litigation, including but not limited to, attorneys’ fees and any other costs and expenses), fines, or losses in connection with any threatened or actual claims, actions, demands, investigations, or suits, including, but not limited to, claims or suits by third parties, arising out of any of the following: (a) Customer’s negligent or willful acts, or those of its employees and/or agents, (b) such Products being repaired or altered by persons other than Countagen (unless expressly authorized in writing by Countagen), (c) in the event that Customer modifies, or combines with any non-Countagen goods or products, any of Products purchased from Countagen, and such modification or combination results in the actual or alleged infringement of any intellectual property rights of any third party, (d) from Products produced by Countagen according to Customer’s specifications, (e) any violations of export control laws by Customer, or (f) Customer’s breach of any provision in these Terms.

Confidentiality

Any Confidential Information shall be the exclusive property of the relevant Party and the Parties shall not disclose or provide any Confidential Information to any third party and shall take all necessary measures to prevent any such disclosure by its employees, agents, contractors or consultants.  All Customer Results shall be deemed Confidential Information of the Customer.

Intellectual Property

Customer acknowledges that all Intellectual Property Rights and know-how relating to the Products and Services, or any improvement thereof, as between Customer and Countagen, are solely and exclusively owned by Countagen. Countagen’s sale of Products to Customer only grants Customer a limited, non-transferable right, for Customer to use the quantity of Products bought from Countagen in accordance with this Agreement. The act of Countagen selling Products to Customer, Countagen does not grant Customer a license to Countagen’s intellectual property or grant Customer the right to make or have made any Product or Service or any portion thereof. The onus rests with the Customer to secure any required “freedom to operate” rights for other intended applications. Any improvements or modifications to Countagens technology and products (patentable or otherwise), that are conceived, developed, discovered, reduced to practice, or generated by or for Countagen, or jointly by Countagen and Customer, will be and will remain Countagen’s sole and exclusive intellectual property.

All Customer Results, such as data, scientific insights and discoveries that are generated by Countagen or by Products or Services from Countagen, or generated jointly by Countagen and Customer, will be and will remain Customer’s property. Customer agrees that Countagen may use the generated Customer Results for purposes of internal development and  data analysis, and Customer hereby grants Countagen a license to any such generated Customer Results for Countagen-internal purposes only, if Countagen has not obtained Customer’s approval to use the generated Customer Result for a given external purpose, communication or publication.

Force Majeure

Countagen shall not be liable for any failure to perform this Agreement when such failure is due to circumstances beyond its control. Circumstances beyond the control of Countagen shall be deemed to include, but shall not be limited to, acts of God, governmental action, accidents, labor trouble, and inability to obtain materials, equipment or transportation.

Assignment

The Parties are not entitled to assign its rights and obligations under this Agreement. Countagen is however entitled to assign its rights and obligations to its subsidiaries and affiliated companies. Countagen is also entitled to assign its right to invoice and collect payment from the Customer to a third party.

Miscellaneous

The Products shall remain the property of Countagen until the Customer has paid all sums due to Countagen, whether under this Agreement or under any prior or subsequent agreement.

Countagen may amend the terms and conditions of this Agreement for no cause at any time, with two weeks written notice. The amended terms shall however not apply to orders placed prior to the date when the new terms and conditions come into force.

The Parties confirm that this Agreement represents the entire understanding and constitutes the whole agreement between them relating to the Products and other subject matter hereof and supersedes all prior agreements, covenants, arrangements, communications, representations or warranties, whether oral or written, by any director, officer, agent, employee or representative any of either Countagen or the Customer.

No failure by Countagen to exercise, nor any delay in exercising or pursuing, any right or remedy under this Agreement shall operate as a waiver of any such right or remedy. No single or partial exercise of any right or remedy, by Countagen, shall prevent any further or other exercise of such right or remedy, or the exercise of any other right or remedy.

Governing Law and Disputes

The Agreement is governed by the laws of Sweden, excluding the UNIDROIT Principles and excluding the International Sale of Products Act.

Any disputes pertaining to this Agreement will be exclusively referred to the district court of Stockholm, as the court of first instance. Actions not commenced by Customer within one year are permanently barred. This Section survives expiration or termination of this Agreement.