Terms and Conditions for Sale and Delivery

1. General

1.1 These terms and conditions (“Terms”) govern any sale and delivery to Buyer of products manufactured and/or distributed by Evosep including but not limited to Evosep One, its spare parts and Consumables (“Products”). Evosep is defined as Evosep ApS, a Danish limited liability company, domiciled at Buchwaldsgade 35, 3., 5000 Odense, Denmark, with a business registration number DK37510068, and Evosep Inc, incorporated under the laws of Delaware, with the registered business address at 1 Broadway, 14th Floor, Cambridge, MA 02142 United States (collectively “Evosep”). Evosep and Buyer may each be referred to herein as a “Party” or collectively as the “Parties.”

1.2 These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfilment of the Buyer’s order does not constitute acceptance of any of the Buyer’s terms and conditions and does not serve to modify or amend these Terms. Where the Parties have entered into a separate written agreement, such agreement takes precedence over these Terms in the event of any conflict.

1.3 Evosep is entitled to unilaterally and at any time modify these Terms with legally binding effect for both Parties immediately after publication of the modified Terms.

1.4 If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term in any other jurisdiction.

2. Order Confirmation

2.1 No order is binding until Buyer has received a written confirmation of sale, invoice or quotation from Evosep (“Order Confirmation”). These Terms are automatically included by reference in any Order Confirmation.

3. Delivery and Shipping Terms

3.1 The Products will be delivered within a reasonable time after receipt of Buyer’s purchase order, subject to availability of Products. Any delivery dates given by Evosep are estimates only. Evosep shall not be liable for any delays, loss or damage in transit.

3.2 Delivery will be made according to Incoterms 2020 EXW – Ex Works (Odense). Evosep will select the mode of transportation and carrier unless otherwise instructed by Buyer.

3.3 Evosep may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is a whole or partial fulfilment of Buyer’s purchase order.

3.4 Any liability of Evosep for non-delivery of Products shall be limited to replacing the Products within a reasonable time.

3.5 Evosep retains all title and ownership in the Products until payment in full is received by Evosep.

4. Prices and Payment

4.1 Final purchase price for the Products is set forth in Order Confirmation issued by Evosep. Evosep reserves the right to adjust prices once a year in January.

4.2 All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer, and are further exclusive of any insurance costs. Evosep reserves the right to charge Buyer any additional costs that may be incurred by Evosep as a result of special shipment, or packaging or insurance requests made by Buyer or any changes to delivery dates, quantities or specifications requested by Buyer.

5. Payment

5.1 Buyer will pay all invoiced amounts to Evosep within thirty (30) calendar days from the date of invoice. Buyer shall make all payments hereunder by bank transfer as specified on the invoice.

5.2 Buyer will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Evosep for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

6. Inspection and Acceptance

6.1 Buyer will inspect the Products immediately upon receipt for non-conformity and damages. Buyer will be deemed to have accepted the Products, unless Buyer notifies Evosep in writing within ten (10) working days from receipt of the Products of any visible defects, shortcomings or claims and furnishes such notice with written evidence or other documentation as reasonably required by Evosep. Buyer’s failure to give such notice shall be deemed an unqualified acceptance of the Products and a waiver by Buyer of all claims with respect thereto and shall further serve as confirmation that Buyer represents it has examined the Products and that they are acceptable and suitable for their intended purpose.

6.2 Defects or shortcomings in the Products will not be ground for cancellation of an order by Buyer on condition that Evosep offers to repair or replace the Products as originally ordered within a reasonable period of time.

7. Limited Warranty

7.1 Consumables including but not limited to, columns, electrospray emitters, Evotips, wear parts and chemicals used in the daily operation of Evosep One, are excluded from the Warranty pursuant to this section 7.

7.2 Evosep warrants to Buyer that for a period of twelve (12) months from the date of shipment of Evosep One and/or its spare parts such Products will be free from material defects in material and workmanship (“Warranty”). Any Warranty pursuant to this section 7 is void, if Evosep One is used with other tips than Evotips.

7.3 Buyer’s reliance on the Warranty set forth in this section 7 is conditional upon: (i) Buyer notifying Evosep of the defect in writing not more than one (1) year from the date of the invoice and not more than ten (10) working days after the Buyer discovers or ought to have discovered the defect; (ii) Evosep being given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested so by Evosep) returning such Products to Evosep’s place of business at Buyer’s cost for examination; and (iii) Evosep’s verification of Buyer’s claim that the Products are defective.

7.4 Warranty under this section 7 will apply only if: (i) Products have been used in accordance with the relevant Products’ data sheet or accompanying user manual or technical guide; (ii) have not been used for a purpose not indicated on the labelling, (iii) no repairs, alterations or other work on the Products have been performed by Buyer without written consent of Evosep; and (iv) the alleged defect is not a result of misuse, improper maintenance, accident or the negligence of any party other than Evosep.

7.5 Evosep’s entire liability for breach of the Warranty in this section and Buyer’s sole and exclusive remedy will be, at Evosep’s discretion, either (i) to repair or replace any defective Products and pay shipment costs for such replacement or (ii) credit or refund the price of such Products at the pro rata rate provided that, if Evosep so requests, Buyer will, at Buyer’s expense, return such Products to Evosep. Buyer will bear all risk of loss or damage to returned Products while in transit.

7.6 EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION, EVOSEP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

8. Services

8.1 In connection with a purchase of Evosep One, Buyer and Evosep may expressly agree on additional services such installation, training, maintenance or repairs (“Services”). Evosep offers annual and other Service Plans, which are subject to Service Terms. For full details on Service Plans and to obtain a copy of the Service Terms, please check Evosep website and/or contact Customer Service.

9. Limitation of Liability

9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVOSEP WILL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY DIRECT OR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF USE OF OR INABILITY TO USE THE PRODUCTS, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 EVOSEP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A PURCHASE ORDER AND THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL IN NO EVENT EXCEED THE TOTAL OF THE AMOUNT PAID TO EVOSEP FOR THE PRODUCTS SOLD UNDER THE SPECIFIC PURCHASE ORDER.

9.3 Evosep is not liable or responsible for any failure or delay in fulfilling or performing any term when and to the extent such failure or delay is caused by or results from the acts beyond Evosep’s reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (i) fire, storm, flood, earthquakes, epidemics; (ii) war, invasion, hostilities; (iii) riots, strikes, labour disputes; (iv) transportation embargoes or delays; (v) shortages of materials or machinery; (vi) government order, law, or actions; (vii) national or regional emergency. Evosep is entitled to cancel any Order Confirmation which is affected by a Force Majeure Event.

10. Compliance with Law

10.1 Buyer will comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to its business and activities, including but not limited to those relating to anti-bribery and corruption and United Nations, US, UK and EU sanctions and export control restrictions.

10.2 The Parties agree to encourage and promote a culture of ethics, compliance, and transparency. Evosep maintains a confidential whistleblower hotline to allow employees, customers, and business partners to report concerns regarding unethical behaviour, fraud, violations of company policies, or legal/regulatory violations. Any concerns can be reported at https://www.evosep.com/whistleblower/.

11. Jurisdiction/Governing Law

11.1 These Terms are governed by and interpreted in accordance with the laws of Denmark, without giving effect to any conflict of law provision.

11.2 All legal proceedings or disputes arising out of or in connection with these Terms and which cannot be resolved by mutual agreement between the Parties will be submitted to the exclusive jurisdiction of the competent courts in Copenhagen, Denmark.

Version 2.1, March 2024
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