Terms of Sale

Last updated: July 08, 2021

These Terms of Sale (“Terms”) govern the sale of products (“Product” or “Products”) and provision of services (“Services”) by Messenger Bio Pty Ltd (“Messenger Bio”, “We”, “Us”, or “Our”), and they will apply to all your orders and purchases from Messenger Bio. Your decision to purchase any Products and/or Services from Messenger Bio shall be deemed to constitute acceptance of these Terms. Any failure on the part of Messenger Bio to object to conflicting or additional terms will not change or add to the Terms of this agreement, and will not be construed as Our acceptance of such terms.

These Terms, including any quotation, purchase order, or other document issued to you by Messenger Bio, constitute the entire contract between us (“Contract”) relating to Our provision of Products and/or Services to you.

If any of these Terms are held to be invalid, illegal, or unenforceable, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be served from the Contract without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

Orders

All orders are subject to Our acceptance and Product availability. Any changes that you may propose to the specifications, quantities, method of shipment, schedule or place of delivery of Products must be provided to Us in writing and may be accepted by Us at Our discretion. We reserve the right to make delivery in instalments, which will be separately invoiced by Us and paid for by you when due as specified on the invoice. We may make changes to Product specifications that do not materially affect the quality or performance of the Products. Once you have placed your order, you may not cancel or change it without Our written consent.

Custom Orders

If you ask Us to manufacture a custom Product, We may decline to design or manufacture that Product at any stage of the process if the Product is unsuitable or commercially impractical to manufacture as specified. If so, We will notify you, and you will not be obligated to pay any fees for any expenses We incurred in connection with the declined Product. If a custom component or material fails, We may delay or cancel a custom Product’s delivery without liability to Us.

By submitting an order for a custom Product, you represent and agree that you (a) have given Us all information you know of regarding any biological, radiological, and chemical hazards associated with the handling, transport, exposure to, or other use of the materials you supply to us; and (b) have the requisite rights, including but not limited to any necessary intellectual property rights, to instruct manufacture of such Product.

Prices, Taxes and Other Charges

We may change Our prices at any time without notice. Prices we quote you are valid for 30 days, unless We state otherwise in writing. If no price has been specified or quoted to you, the price will be the list price in effect at the time We receive your order.

Unless otherwise stated, Our prices do not include any taxes (including GST), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. You are also responsible for standard delivery and handling charges, if any, and such charges will be added to your invoice. Our Product prices do not include such charges unless expressly stated.

Payment

We will invoice you for the Product price and all other relevant charges either when you place an order or when We ship you the Product(s) you ordered. Invoices shall be paid in Australian dollars unless otherwise stated, within 30 days of the invoice date. Each order is a separate transaction, and you may not set-off payments from one order against another. If you are late in making payment, without affecting Our other rights, We may suspend delivery or cancel the order or Contract, reject your future orders, and charge you a late-payment fee, from the due date until paid, at the rate of 1% per month (12% per year) or, if less, the maximum amount allowed by law. We also reserve the right to include Our reasonable costs of collection (including collection agency fees and attorneys’ fees). Our preferred payment methods are via electronic funds transfer or credit card, although we may also accept other payment methods.

Delivery

When you purchase any physical Product from Us, delivery will take place as soon as reasonably possible, depending upon the delivery method selected. Delivery times may vary due to unforeseen circumstances. Our shipping dates are approximate only, and We will not be held liable for any loss or damages resulting from any delay in delivery.

All of Our Products are sold FCA Our shipping point. Products are delivered when We load them onto the commercial carrier at the shipping point. At this point, Title and risk to the Products will pass to you and you will become responsible for risk of loss and damage. If any Product is lost or damaged while it is being transported, We will try to help you address the problem with the carrier. We will not be held responsible for any non-delivery or delay in delivery of the goods to the extent that such an occurrence is beyond Our control. You must take out all appropriate insurance cover including transit insurance to protect against any such loss, damage or delay.

Inspection and Returns

To the extent permitted by law, if any Products supplied are either damaged or defective on delivery, or if there are any delivery errors or shortages, you must contact Us within 7 days from the day you receive the Products to be eligible for a refund or replacement of the Product. If you do not contact Us within the initial 7-day period, the Products will be deemed accepted, but you will not lose any warranty rights. Claims for replacement or refund will not be effective unless approval is provided by Us. The determination of whether a refund or replacement is provided will be at Our discretion and subject to your compliance with this clause and instructions provided to you by Us. Not all items will be authorised for return, due to temperature and packing requirements. Items authorised for return must arrive at Our facilities in a state satisfactory for resale (to be determined by Us) to be eligible for Product credit.

Credits and Refunds

At Our discretion, we may replace defective Products free of charge, issue a Product credit, or refund you for the Product value and other relevant charges. The full Product credit will not be available for use if you owe Us any amount of money, or if there is a balance outstanding on your account, in which case you authorise Us to set off all refunds or credit amounts We may owe you against all such unpaid amounts. Any Product credit leftover after reconciling unpaid amounts will be usable at your discretion. Unused Product credit expires 12 months after the date of issue.

Warranties

Unless a different written warranty is included with product literature or on the relevant www.messenger.bio Product pages, We warrant to you that Our Products will conform to the technical specifications for such Products as provided in Our catalogues and literature accompanying the Products until their respective expiration dates (if stated), or up to their respective number of uses as the case may be, or, six (6) months from the date we ship such Products, whichever is longer.

If We manufacture custom goods for you based on instructions, specifications, or other directions you provide to Us, We will not be liable for the lack of sufficiency, fitness for purpose or quality of the goods to the extent attributable to such instructions, specifications, or other directions. We will not warrant any such products and you must indemnify Us for all loss arising out of any such manufacture of custom goods which may be dangerous or defective or otherwise cause loss, damage, pain and suffering, liability, or expense.

We do not support or make any warranties about products manufactured by third parties you purchased through any of Our sales channels. Such products are subject to the warranties, if any, of their respective manufacturers to the extent they are transferable or otherwise available to Our customers. You must look directly to the relevant third-party manufacturer for warranties and to make warranty claims.

In addition to Our exclusion for third party products, Our warranties do not apply to (a) normal wear and tear; (b) accident, disaster or event of force majeure; (c) your misuse, fault or negligence; (d) causes external to the Products such as, but not limited to, power failure or electrical power surges; (e); instruments sold to you as ‘used’ products; (f) installation, removal, use, maintenance, storage, or handling in an improper, inadequate, or unapproved manner by you or any third party (including the carrier), such as, but not limited to, failure to follow Our instructions or operating protocols, operation outside of stated environmental or use specifications, or operation or contact with unapproved software, materials, chemicals or other products; or (g) Products manufactured in accordance with specifications you gave Us.

Unless otherwise agreed, all technical assistance and information We provide to you regarding the Products will be provided free of charge and only as an accommodation, and you assume sole responsibility for results obtained in reliance thereupon. We make no warranty regarding such technical assistance or information. You acknowledge and agree that you have not relied upon any advice given by Us, any of Our agents or employees in relation to the suitability for any purpose of Products supplied to you by Us.

Our warranties extend only to you, the original purchaser, and you cannot transfer them. Our obligation to replace or refund a Product is your sole remedy.

Use of Products

Except as otherwise agreed in writing by Our authorised representative, all Products are for RESEARCH USE ONLY, AND NOT FOR HUMAN OR ANIMAL THERAPEUTIC OR DIAGNOSTIC USE. We do not submit Our Products for regulatory review by any government body or other organisation, and we do not validate them for clinical, therapeutic or diagnostic use, or for safety and effectiveness. You are solely responsible for making sure that the way you use the Products complies with applicable laws, regulations and governmental policies and for obtaining all necessary approvals, intellectual property rights, licenses and permissions that you may need related to your use. You represent and warrant to Us that you will properly test, use, and, to the extent authorised, market any Products purchased from Us and any final articles made from them in accordance with the practices of a technically qualified individual and in strict compliance with all applicable governmental food, drug, device, and cosmetic requirements and other applicable governmental requirements, now and hereinafter enacted.

It is solely your responsibility to make sure the Products are suitable for your particular use and to conduct any research necessary to learn the hazards involved for any of your uses of Products purchased from Us. You also have the duty to warn your customers, employees and any other relevant personnel of any risks involved in using or handling the Products. You agree to comply with instructions for use of the Products furnished by Us, if any, and not to misuse the Products. If the Products purchased from Us are to be repackaged, relabelled or used as starting materials or components of other Products, you will verify Our assay of the Products, qualify the Products provided by Us for such applications, and comply with all governmental requirements relating to labelling or providing other communications to customers.

Messenger Bio products are for research purposes only and not for human application. Unless a prior agreement with Messenger Bio is in place that directly addresses the following, the conditions stated in this paragraph apply. The purchase/sale of Messenger Bio products does not imply or grant any license, under any patents or patents pending. Messenger Bio neither implies nor grants any license under any patent or patent application. Messenger Bio does not guarantee that the utilization or sale of its products will not violate the rights of any existing or pending patents. The buyer bears full responsibility for all uses of Messenger Bio products.

Intellectual Property

You acknowledge and agree that any and all intellectual property rights relating to Our Products and Services, including know-how, will at all times remain vested in Messenger Bio and its licensors. Unless otherwise expressly agreed in writing by Our authorised representative, your purchase of any of Our Products only grants you a limited, non-transferable right to use the quantity of the Products that You have purchased from Us for your internal research purposes only, and in compliance with the applicable intended use statement, limited use statement or limited label license, if any, in Our current catalogue, website or on the label or other documentation accompanying the Products (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety). No right to resell Our Products or any of their components is conveyed expressly, by implication, or by estoppel. Unless otherwise expressly permitted in writing by Our authorized representative, We provide no rights to use Our Products in commercial applications of any kind, including, without limitation, manufacturing, quality control or commercial services such as reporting the results of your activities for a fee or other form of consideration. It is solely your responsibility to determine whether you may be required to obtain any additional or third party intellectual property rights depending upon the particular application in which you use the Product. If you need commercial use rights to Our Products (including the right to perform fee-for-services), please contact Us at hello@messenger.bio.

Indemnity

You may have certain rights and remedies under the Competition and Consumer Act 2010 (Cth) and other laws, which may also imply certain conditions and warranties into this Agreement. We do not exclude, restrict or modify those rights, remedies or conditions and warranties to the extent that to do so would constitute a contravention of those laws.

You will indemnify Us and keep Us indemnified, together with Our officers, agents, employees, distributors and affiliates ("Indemnified Party") for any claim, loss, damage, expense or other liability (including reasonable attorneys' fees and costs) which may be made against an Indemnified Party as a result of:
(a) your acts, omissions, use or modification of a Product;
(b) Our manufacture or sale of a Product We make under your instructions, specifications, or other directions;
(c) your failure to comply with the Contract,;
(d) your failure to acquire any applicable additional rights related to your use of the Products; or
(e) Our use of materials you provide to Us.

Limitations of Liability

To the maximum extent permitted by applicable law, We will not be liable under any legal theory (including but not limited to contract, negligence, strict liability in tort or warranty of any kind) for any indirect, special, incidental, punitive, multiple, exemplary or consequential damages (including but not limited to costs of cover, lost profits, lost data, loss of business, loss of goodwill or loss of revenue) that you might incur under the Contract, or that may arise from or in connection with Our Products or Services, even if We had notice of the possibility of such damages. In addition, Our maximum aggregate liability arising out of or in connection with the Contract, or any Product or Service, is limited to the amount you paid to Us for the Product purchased.

Miscellaneous

We will not be responsible or liable for failing to perform Our obligations under the Contract to the extent caused by circumstances beyond Our reasonable control. Our exercise of any option or failure to exercise any rights hereunder will not constitute a waiver of Our rights to damages for breach of contract and will not constitute a waiver of any subsequent failure, delay, or breach by you. If any provision or part of the Contract is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not invalidate the other provisions of the Contract. This Contract is governed by the laws of the State of Victoria, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia. You agree to keep confidential any non-public technical information (including gene sequences, manufacturing protocols, etc.), commercial information (including prices, without limitation) or instructions received from Us as a result of discussions, negotiations and other communications between Us in relation to Our Products or Services. We reserve the right to change these Terms at any time without prior written notice. We will notify You of any changes by posting the new Terms on this page and updating the "Last updated" date at the top of this Terms page. Any changes made to these Terms will not apply to the Contract between Us for any order we receive before the changes are made. You will be deemed to have accepted Our new Terms upon placing your next order following such change.