Standard Terms and Conditions

1. Preamble
Kemp Proteins (“Kemp”) General Terms and Conditions of Sale shall apply to all quotations, accepted purchase orders, contracts and supply agreements (each a “Contract”) between us and our clients, customers, Clients. Any differing conditions or terms of Client are herewith objected to and shall not apply. Any other agreement affecting the execution of these terms must be in executed in writing by both parties.

2. Offer and Conclusion of Contract
Kemp will perform business by offering a quotation and receiving a written purchase order against which Kemp will confirm acceptance in writing. Kemp will provide a quotation valid for 90 (ninety) days for all projects and services. All purchase orders offered by Clients will only be accepted by Kemp if there is a corresponding quotation in our system. Kemp will use reasonable commercial efforts to fulfill the conditions and deliverables of any quotation that is converted to a purchase order. It is recognized by Clients that all of Kemps work is biological in nature and as such we cannot guarantee the yield of delivery of required volumes. Final production yield is dependent on the expression level of biological materials, Kemp will advise Clients if; unexpected production issues are encountered, such as;

Gene/ Virus/ Cell line/ and the like has poorer than expected production levels
There is significant loss at purification/ buffer exchange
If there is a large amount of aggregation

Kemp will advise Client of alternatives in such circumstances and will provide quotation for any additional work involved in meeting the Client specification.

Samples provided at any stage of a project are to be considered non-binding material for illustration and/or test purposes, giving only an approximation of properties and specification.

3. Price of the Goods
Prices quoted are always in US Dollars (US$). We reserve the right to adapt prices from time to time to reflect any increase in our costs, for any reason beyond our control, like force majeure, shortage of primary material or labor, strikes, official orders, transportation or similar problems. If this increase happens after confirmation of order but before delivery of goods we may at our sole discretion increase the price of such goods. Our prices are exclusively ex-works (Incoterms 2018), unless stated otherwise in writing and do not include any kind of taxes for which the Client is fully responsible. Our prices do not include transportation or insurance charges for which the Client will be fully responsible.

4. Terms of Delivery
Confirmed delivery dates are not to be considered as fixed dates, unless stated otherwise in writing, but are for general planning purposes. We reserve the right to postpone delivery at our sole discretion in the case of force majeure for the duration of the obstruction plus a reasonable period of recuperation. Should delivery have become impossible by an act beyond our control we reserve the right to partially or completely rescind the contract. Strikes, unforeseeable events or interruptions of operations are considered force majeure, should we have no influence over these events. We reserve the right to partial deliveries unless the Client has rejected in writing to such supply. Unless failure to comply or delay of delivery was caused by us, our lawful representatives or auxiliary persons by gross negligence or intentional acts, we will not be liable for noncompliance. Should we be liable under the terms aforementioned, liability is limited to damages that occur foreseeable and typically under the circumstances. Unless agreed otherwise, delivery is made from loading dock at Kemp’s premises. Goods having left Kemp’s loading dock travel at cost and risk of Client, unless agreed otherwise in writing by Kemp.

5. Terms of Payment
Unless agreed otherwise, our invoices are to be paid in full, in US dollars (US$), Net 30 (thirty) upon notification to Client by Kemp of shipment of merchandise and submitting of an invoice for such goods. Should Client fail to pay Net 30 (thirty), they will automatically be considered as in default of payment. For the avoidance of doubt, payment is considered made when the funds are fully at our disposal. Detention of payments or balancing of payments against claims of Client against Kemp is not permitted, unless these claims are undisputed or legally established. If Client fails to make payment by due date, without prejudice to any other right or remedy available to the Kemp, we are entitled to charge the Client interest on the unpaid amount, at a rate of US prime plus 3%. Should there be reasons to doubt the solvency or credit standing of the Client, we reserve the right to demand securities or prepayment for any outstanding delivery or declare immediate maturity of all outstanding claims.

6. Retention of Title
Notwithstanding delivery or passage of risk in the merchandise, property of merchandise shall not pass to the Client until full payment of all our claims against the Client, regardless of their grounds, was made. If merchandise is processed or mixed by Client with goods that we have no property in, we shall become co-owner of these goods, which shall be stored for us by the Client. Should we lose ownership due to processing or fusion, we will become partial co-owner (value of invoice) of the new product. The Client will store the co-owned goods free of charge. These goods are called reserved goods in the following. Client has the right to process or sell these goods in the regular course of business, as long as payment obligations are fulfilled. Pledging or cession by security of these goods is not permitted. For safeguard, receivables based either on the sale of these goods or on any other ground (insurance, torts) are considered fully assigned to us. These assigned receivables are released under the condition that their achievable value exceeds the value of our secured receivables by more than 10%. Client authorizes us to collect them at Clients costs, a right that we are obliged not to exercise unless Client fails to meet his payment obligations towards us or, particularly, institutes bankruptcy proceedings. In the case of bankruptcy or suspension of payment, we have the right to demand that Client declares the assigned receivables, gives all information and documentation necessary for us to collect our claims and informs garnishee of the assignment. Should third parties try to claim these goods, Client is obliged to inform them of our property. Client will be held responsible for all costs and damages.

7. Warranty
The Client shall examine the merchandise upon arrive at its own facility or the place it designated for shipment in the purchase order. The merchandise will be checked by the Client against the specifications agreed in the purchase order and determine if merchandise is suitable for the intended purposes, if necessary by running appropriate tests. Claims will only be accepted if we are informed immediately upon detection of any fault. Claims will only be accepted if we are informed no later than 30 (thirty) days after receipt of merchandise. If any valid claim of faulty merchandise is made, we will replace the merchandise free of charge. We will not be liable for any consequential damages caused by any defect or fault in the merchandise, since the object of the warranty is compliance of the delivered merchandise with the contract. The warranty does not cover damages to the goods that were caused by improper handling or storage after the passage of risk or where caused by external factors that were not foreseen in the contract. We will be liable according to the extent of the applicable laws if damages occur due to gross negligence or deliberate acts by us, our lawful representatives or auxiliary persons. If the violation of contract was not caused by an intentional act, liability will be limited to foreseeable and typical damages. Any further liability is excluded, expressively for any kind of damages that occur on anything or in any way other than on the delivered merchandise itself. Binding provisions of the German Product Liability Law remain unaffected. Our contracts are governed exclusively by German Warranty and Product Liability laws. For avoidance of doubt, unless agreed otherwise in writing, such Agreements will be governed in all respects by the laws of Maryland, excluding its rules on conflict of law.

8. Technical Advices
Our technical advices are given according to our best knowledge and experience. Client is obliged to apply due diligence in verifying applicability of our advice to his special conditions of production or application. Concerning our technical advice, which are given free of charge, we will only be liable for damages caused by gross negligence or deliberate acts from our part or by our lawful representatives or auxiliary persons. Unless intentional violation of contract has been proven, we will only be liable for damages that occur foreseeable and typically.

9. Liability Clause
Liability for damages is strictly limited to the provisions made herein in paragraphs 5,6 and 7, regardless of their nature, particularly with regard to damage claims arising from fault at closure of contract, default at performance of contract or torts.

10. Miscellaneous Clauses
Place of execution and place of venue is Frederick, Maryland. We reserve the right to issue court proceedings at Client’s place of business. These General Terms and Conditions of Sales, as well as all our business relations with our Clients, are governed exclusively by the Laws of the Maryland. Please note that some of our goods might require exportation license under United States law or might be subject to import / export restrictions of the USA or under the Nonproliferation treaty. These provisions are to be observed by the Client in case of sale or exportation of the goods. Should one of the clauses above or part of one of the clauses above be legally invalid, validity of the other clauses of these General Terms remains unaffected.