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Terms and Conditions

  • Area of Application
    1. All Orders accepted and performed by AG BIOTECH, INC. (AGBIO) will be governed by these Terms and Conditions (the “Terms and Conditions”), including orders placed by telephone which have not been confirmed in writing and orders made by delivery of samples. A contract with these Terms and Conditions comes into being when an order that has been placed with AGBIO is accepted by AGBIO. An order placed with AGBIO is considered as accepted by AGBIO when (a) AGBIO proceeds to fulfill that order, without need for any written confirmation from AGBIO or (b) AGBIO accepts the order in writing including but not limited to an AGBIO Order Confirmation or Project Bid form.

    2. These Terms and Conditions supersede and replace all prior verbal or written price quotations and agreements between the parties and, unless specifically indicated otherwise therein, take precedence over all conflicting or inconsistent provisions of subsequent written agreements between the parties. No officer (other than the President of AGBIO), employee, agent or subcontractor of AGBIO has the authority to alter or waive any of these Terms and Conditions or to make any representation which conflicts with or purports to override any of these Terms and Conditions; and no such alteration, waiver or representation shall be binding upon AGBIO, unless it is in writing and signed by the President of AGBIO.

  • Placement of Order
    1. A customer’s order will be valid only if it is sent by mail or fax or other electronic message with customer contact information or by using AGBIO or client’s own sample envelopes, approved sample dispatch sheets or any electronic order forms. The commercial aspects of the order which are not specifically set out in these Terms and Conditions (including price, estimated turnaround times and delivery date) must be agreed at the time of the order. Upon receipt, the customer may be sent a project number or an order confirmation for all verbal or written orders. In such event, the customer must confirm all orders after they are made and will be deemed to have placed the order. AGBIO is not obligated to start any analytical work unless the order is clear and AGBIO has been provided all required information.

    2. Unless specifically accepted in writing and signed by the President of AGBIO, any terms proposed or submitted by a customer at any time (including, but not limited to, terms or provisions in the customer’s purchase order, instructions or other document) which differ from these Terms and Conditions are rejected as a material alteration of these Terms and Conditions and shall be of no force or effect. Furthermore, special terms or conditions of prior order special pricing, will not automatically apply to subsequent orders. Each order accepted by AGBIO will be treated as a separate contract between AGBIO and the customer.

    3. AGBIO is entitled to charge management and administrative fees of up to Twenty Five Dollars (US$25) in connection with the request for additional services to an existing order. A request for additional services on samples that have entered the laboratory will be treated as a new order and may postpone estimated delivery date accordingly.

    4. Any logistic service off-site of the laboratory including sampling services must be paid in full, unless it has been cancelled or modified by the customer at least forty eight (48) hours in advance.

    5. Samples received from international customers may be regulated by the United States Department of Agriculture Animal and Plant Health Inspection Services (USDA APHIS). Samples sent from one state to an AGBIO facility in another state may be regulated by state agencies. Customer acknowledges and agrees to deliver samples to AGBIO consistent with all regulations and further agrees to bear all costs associated with these regulations.

  • Price and Terms of Payment
    1. If the acknowledgment of an order does not state otherwise, AGBIO’ prices apply “ex works”, excluding packaging, which is charged separately. Any additional cost or disbursement incurred by AGBIO in connection with the order must be paid by the customer.

    2. Prices are exclusive of all applicable taxes (including sales, use and VAT) and are based on tariffs in force at the day of the remittance of the offer to the customer. Applicable taxes are those in force at the date of invoicing.

    3. Unless specifically agreed otherwise by AGBIO in its acceptance of an order, payment of all invoices is due strictly within the terms of the invoice date. Any dispute about invoices must be raised within 30 days of the invoice date. The challenge of an analytical result will not entitle a customer to defer payment. Any invoice which remains outstanding after due date, may be additionally charged with an administrative penalty of Seventy Five Dollars (US$75.00) and may carry interest at the rate of one and a half percent (1.5%) per month or the maximum interest rate permitted by applicable law, whichever is lower.

    4.  Invoices are subject to a minimum invoice charge of one hundred Dollars (US$100.00). AGBIO has the right to charge an administrative fee of up to Fifteen Dollars (US$15.00) to re-issue an invoice.

    5.  The invoice settlement method is check, bank transfer or direct debit. Any other method of payment must receive prior agreement from AGBIO. The customer undertakes to provide bank account details.

    6. AGBIO is entitled to require payment of up to 100% of the quoted order price as a condition of acceptance. All orders cancelled after 72 hours after acceptance (delivery to the laboratory) shall be subject to cancellation fees. The cancellation fee will be based on the progress of sample testing but shall not exceed the price of the test quoted.

  • Duties of Customer in Delivering Samples or Materials
    1. The customer is solely responsible for; (a) submission of a representative and protocol conforming sample and the proper delivery of samples. (b) for supplying sample or “chain of custody” information, such as variety name or lot number, when necessary for analysis; and (c) when requested by AGBIO, the composition of the samples, the condition of the samples, such as treatment and/or disinfectants. The customer acknowledges and agrees that AGBIO is entitled to reject samples and either terminate the Order or reissue the Order with new fee and delivery date estimates when samples submitted do not meet the above requirements. Furthermore, the customer acknowledges and agrees to pay for any costs associated with the rejection of samples or re-issuing of an Order.

    2. The samples or materials must be in a condition that makes the preparation of reports/analyses or the production of ordered products possible without difficulty. AGBIO is entitled to conduct an initial examination of the samples or materials to check their condition before processing the samples, drawing up a report or using them in production. The customer shall bear the costs of this initial examination, if the samples or materials do not comply with the requirements described and if the result of the initial examination is that an analysis or production is impossible or is possible only under more difficult conditions than originally anticipated – for example, because the samples or materials have been interspersed with foreign materials or substances that were not reported by the customer or are degraded – AGBIO shall be entitled to terminate or interrupt the order and the customer shall bear costs incurred by AGBIO to that point.

    3. The customer must ensure, and hereby warrants, that no sample poses any danger, including on its site, during transportation, in the laboratory or otherwise to AGBIO premises, instruments, personnel, representatives, or other customers’ products. It is the customer’s responsibility to insure compliance with hazardous waste regulations, including regarding information, transportation and disposal and to inform AGBIO personnel or representatives about sample health and safety concerns, including any known or suspected toxic or other contaminant that may be present in the sample and its likely level of contamination as well as the risks to AGBIO premises, instruments, personnel and representatives related to the contamination. The customer shall be responsible for, and indemnifies AGBIO against, all costs, (including reasonable attorney’s fees), damages, liabilities and injuries that may be caused to or incurred by AGBIO or its personnel or representatives including on the sampling site, during the transportation or in the laboratory by the customer’s sample or by sampling site conditions. The customer shall bear all extraordinary costs for adequate disposal of hazardous waste resulting from the sample, whether or not described as hazardous waste. At AGBIO’ request, the customer must provide AGBIO with the exact composition of the samples.

  • Property Rights on Sample Material and Sample Storage
    1.  All samples become the property of AGBIO to the extent necessary for the performance of the order. Unless the customer pays for storage, AGBIO shall have no obligation or liability for samples sent to AGBIO for storage, including samples requiring refrigeration. If the customer pays for storage, AGBIO will take commercially reasonable steps to store the samples, according to professional practice.

    2. AGBIO can dispose of or destroy samples immediately after the analysis has been performed, unless AGBIO and the customer have agreed in writing on the terms of AGBIO’ retention of the sample. AGBIO also can dispose of or destroy the samples after the agreed upon retention period, without further notice and at customer’s cost, should an extra cost for AGBIO arise to comply with any regulation (for example, with respect to disposal of hazardous waste). If the customer requests the return of unneeded sample material, AGBIO will return them to the customer, at the customer’s cost and risk.

    3. Delivery Dates, Turnaround Time

    4. Delivery dates and turnaround times are estimates and do not constitute a commitment by AGBIO. Nevertheless, AGBIO shall make commercially reasonable efforts to meet its estimated deadlines.

    5.  Results are generally sent by email and/or by USPS mail, or via other electronic means, to the attention of the persons indicated by the customer in the order, promptly after the analysis is completed. If the customer does not want results transmitted by a particular method, the customer must notify AGBIO in writing, prior to the transmission.

  • Delivery Dates, Turnaround Time
    1. Delivery dates and turnaround times are estimates and do not constitute a commitment by AGBIO. Nevertheless, AGBIO shall make commercially reasonable efforts to meet its estimated deadlines.

    2. Results are generally sent by email and/or by USPS mail, or via other electronic means, to the attention of the persons indicated by the customer in the order, promptly after the analysis is completed. If the customer does not want results transmitted by a particular method, the customer must notify AGBIO in writing, prior to the transmission.

  • Transfer of Property
    1.  All genetic, seed and plant material, components of the genetics, seed and plant material, all documents, analysis results and certificates are the property of the customer. Title in any analysis results, products, equipment, software or similar supplied by AGBIO to the customer will remain with AGBIO until all invoices in respect thereof have been paid by the customer in full, and until such full payment, the customer shall have no property rights or other rights to use them. In addition, even if AGBIO has accepted and begun to fulfill an order, AGBIO has the right at any time to stop processing that order and to stop doing any work for a customer if that customer is late in paying any amount due to AGBIO, whether for that or any other order.

    2. Even after payment in full by the customer, AGBIO shall retain the right to store, use and publish all analysis results in an anonymous form which does not identify the customer.

  • DISCLAIMER AND CUSTOMER WARRANTY
    1.  Orders are handled in the conditions available to AGBIO in accordance with the current state of technology and methods developed and generally applied by AGBIO and the results may not always be 100% exact and/ or relevant. Analysis, interpretations, assessments, consulting work and conclusions are prepared with a commercially reasonable degree of care but AGBIO cannot guarantee that these will always be correct or absolute. The reported analysis has been carried out under Good Laboratory Practices with controlled laboratory standards and test conditions. In all cases, the customer must independently verify the validity of any results, interpretations, assessments and conclusions supplied by AGBIO, if it wishes to rely on the same in respect of matters of importance and shall do so at its own risk.

    2. Each analytical report relates exclusively to the sample analyzed by AGBIO. If AGBIO has not expressly been mandated and paid for the definition of the sampling plan (including which samples of which raw materials and finished products and at which frequency should be analyzed) and the definition of the precise range of analysis to be performed or if the customer has not followed AGBIO recommendations, AGBIO shall not bear any responsibility if the sampling plan and/or the range of analysis to be performed prove to be insufficient or inappropriate. The accuracy of the analysis is dependent on the accuracy of the information given to AGBIO about the sample provided for testing. The analysis is limited to the sample tested which may not accurately represent the lot or group from which the sample was taken. Customer assumes all responsibility and liability arising from misidentification or misrepresentation about the sample or from the sample not providing an accurate representation of the lot or group from which the sample was taken.

    3. The customer is responsible for the proper delivery of samples sent to AGBIO for examination/analysis or materials sent for production. Unless otherwise specifically agreed in writing by AGBIO, AGBIO accepts no responsibility for any loss or damage which may occur to any sample in transit or to any facility or site where logistics services are being delivered. The customer will at all times be liable for the security, packaging and insurance of the sample from its dispatch until it is delivered to the offices or the laboratories of AGBIO. AGBIO will use commercially reasonable care in handling and storing samples, but AGBIO shall not be held responsible for any loss or destruction of samples even after receipt at its laboratories.

    4. The customer warrants and represents to AGBIO that all samples sent to AGBIO for analysis are safe and in a stable condition and shall indemnify AGBIO for any losses, injuries, claims and costs which AGBIO, or its personnel, may suffer as a result of any sample not being in a safe or stable condition, notwithstanding that the customer may have given an indication on the sample or an order form of any perceived problem with the sample. The customer must always inform AGBIO in writing prior to shipment and label the packaging, samples and/ or containers appropriately, if the samples are dangerous or otherwise of a hazardous nature.

    5. It is a condition of AGBIO’ acceptance of an order that the customer indemnifies AGBIO for any losses, injuries, claims and costs which AGBIO may suffer as a result of arising from or in any way connected with its role under or services or products or software provided pursuant to these Terms and Conditions, except to the extent that AGBIO is required to bear them according to these Terms and Conditions, and by placing an order the customer agrees to provide that indemnification.

    6.  AGBIO relies upon customer’s representation regarding the hybridity nature of the submitted seed sample and from which AGBIO determines hybridity. Customer assumes all responsibility or liability arising from misidentifying the male or the female inbred.

    7. Unless explicitly agreed in writing by all parties, the contractual relationship shall be between the customer and AGBIO. There shall be no third party beneficiary or collateral warranty relating to any order and the customer shall indemnify and hold AGBIO harmless from and against any and all third party claims in any way relating to the customer or order by the customer.

  • Limitation of Liability
    1. AGBIO guarantees that the sample tested conforms to the results stated in the report. This guarantee is limited to retesting or refund of the price paid for the analysis, at AGBIO’s option, of any sample which fails to conform to the results reported after a determination is made by AGBIO that the sample does not conform to the report. AGBIO’s liability hereunder shall never exceed the original price paid for the analysis. Any claims made under this limited warranty shall be made within 10 days after Customer learns of the facts upon which such claim is based and while the crop, if any, grown from the allegedly non-conforming seed is still in the field and subject to inspection by AGBIO. In no event may any claim be made more than 120 days after the report is issued.

    2. All claims not made in writing within the time limitations specified herein shall be deemed waived. In no event shall AGBIO be liable for damages in excess of the amount paid for the analysis caused by seed borne diseases and pathogens nor shall AGBIO be liable for claims brought about or contributed to by the transmission to plants, other than those grown from the sample seed, of any disease, rust, wilt, fungus or insects or larvae or eggs thereof. AGBIO shall not be liable for any indirect, direct or consequential loss or damage (including, but not limited to, loss of business, profits, goodwill, and business opportunities or similar) incurred by the customer or by any third party.

    3. ENERAL WARRANTY EXCLUSION: Other than the guarantees contained herein, AGBIO extends no warranty or condition of any kind, express or implied, including any implied warranty or condition of merchantability, fitness for use, or suitability for purpose, with respect to the manner, quality, and timing of the services provided to customer or the results, equipment, products, or software supplied by AGBIO. Under no circumstances will AGBIO or its agents or employees be liable under any tort, negligence, strict liability, contract or other legal or equitable theory, for special, indirect, incidental, consequential or other similar damages or for the cost of effecting cover.

  • Repeated Analysis
    1. Objections to test results can be made within fourteen (14) days after the customer receives the final results. However, unless it would appear that the results of the repeated analysis do not match those of the first one, the customer shall bear the costs of the repeat testing or review. Furthermore, a repeated analysis will be possible only if AGBIO has a sufficient amount of the original sample on hand when it receives the customer’s objection. Otherwise the customer will be required to pay all costs, including sampling, transportation, analytical and disposal costs for the repeat analysis.

  • Force Majeure
    1. AGBIO cannot be held liable for delays, errors, damages or other problems caused by events or circumstances which are unforeseen or beyond AGBIO’s reasonable control, or which result from compliance with governmental requests, laws and regulations.

  • Confidentiality & Processing of Customer Data
    1. AGBIO shall be entitled to save and process personal or commercial data received from the customer in any way, no matter whether such data stem from the customer directly or from a third party and shall use commercially reasonable efforts to keep such data confidential, in compliance with applicable law. AGBIO will keep Customer’s lot number, variety name and test results confidential. AGBIO assumes no other responsibility for protecting customer’s proprietary information.

    2. AGBIO shall use commercially reasonable efforts to keep all analysis results and service reports confidential, subject to AGBIO’ rights set forth in clause 7.2 and the right to use them in order to demonstrate its entitlement to payment for services rendered.

    3.  Analysis results are prepared and supplied exclusively for the use of the customer and may not be divulged to a third party for any purposes without the prior written agreement of AGBIO. In addition, the customer is required to maintain secrecy concerning all services provided by AGBIO and their results as well as the composition of products and software delivered by AGBIO. Analysis results are not to be publicly disclosed or exploited without the prior written consent of AGBIO. Even if such written consent is given by AGBIO, the customer (a) remains responsible for any consequences due to the divulgence of such results to a third party and any reliance of such third party on such results and (b) hereby agrees to indemnify the AGBIO against any liability which AGBIO may incur as a result of such divulgence or any such third party reliance.

  • Miscellaneous
    1. These Terms and Conditions may be modified in writing from time to time by AGBIO and orders will be governed by the most recent version of these Terms and Conditions that is in effect at the time AGBIO accepts the order.

    2. Should a court waive, limit or hold to be invalid, illegal or unenforceable any part of these Terms and Conditions, all other parts shall still apply to the greatest extent possible.

    3.  Failure by either AGBIO or the customer to exercise the rights under these Terms and Conditions shall not constitute a waiver or forfeiture of such rights.

  • Governing Law/ Jurisdiction
    1. The construction, validity and performance of these Terms and Conditions shall be governed by the laws of the State of California, or in the event of federal laws, by the laws of the United States of America. Customer hereby submits to the jurisdiction of such courts and agrees to bring action exclusively in such courts. If legal action is required to enforce this Agreement, AGBIO shall be entitled to recover its attorney fees and costs.