Terms and Conditions of Sale


These terms and conditions ("Terms") shall govern the purchase and sale of Material pursuant to any contract between Extracellular and Purchaser.

1.  ​Definitions and interpretation

1.1 ​Definitions

Unless otherwise defined herein, all initially capitalised terms used in these Terms shall have the following meanings:

"Agreement" means the contract between Extracellular and Purchaser for the sale and purchase of Material on these Terms.

"Business Day" means  a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

"Extracellular" means Extracellular Ltd (registered in England and Wales under number 13964988) the registered office of which is at Science Creates Old Market, Midland Road, Bristol, Somerset, England, BS2 0JZ.

“Extracellular Material” means Extracellular Original Material along with its Progeny and Unmodified Derivatives including Unmodified Derivatives existing within Modifications.

“Extracellular Original Material” means the Materials, including but not limited to genetic, proteomic, and metabolomic data relating to the Material, received from Extracellular by Purchaser as described on an Order.

"Material" means the Extracellular product(s) specified in an Order.

"Order" means an order submitted by Purchaser for the purchase of Material.

“Modifications” means organisms or biological substances created by or on behalf of Purchaser which are not Progeny or Unmodified Derivatives, but which contain or incorporate Extracellular Material. By way of a nonlimiting example, Modifications result when Extracellular Material is modified through molecular biological technology.

"Purchaser" means the person or company that purchases Material from Extracellular under an Agreement.

“Modifications” means organisms or biological substances created by or on behalf of Purchaser which are not Progeny or Unmodified Derivatives, but which contain or incorporate Extracellular Material. By way of a nonlimiting example, Modifications result when Extracellular Material is modified through molecular biological technology.

“Progeny” means an unmodified descendant from the Extracellular Original Materials, such as plasmid from plasmid, virus from virus, cell from cell, or organism from organism.

“Unmodified Derivative(s)” means substances and sequence data native to and characteristic of Extracellular Original Material, including without limitation characteristic nucleic acids, proteins, lipids, carbohydrates, metabolites, membranes, exosomes, organelles, and other native substances, characteristic sequence data of nucleotide, amino acid, or other biological polymerizable monomers, biological polymers expressed according to such characteristic sequence data, antibodies secreted by a hybridoma cell line, or purified or fractionated subsets or lysates of any of the above.

1.2 Interpretation​

In these Terms:

​(a)             reference to:

​(i)               the singular includes the plural and vice versa and any gender includes other genders;

​(ii)              the "introduction" or to a "clause" is a reference to the Introduction or the relevant clause of or to these Terms;

​(iii)             a party or the parties means a party or the parties to these Terms and includes permitted assigns;

​(iv)            "these Terms" includes these Terms as amended or supplemented from time to time; and

​(v)              legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

​(b)             the words "include", "including" and "for example" are to be construed as being by way of illustration or emphasis only and are not to be construed so as to limit the generality of any words preceding them; and

​(c)              the words "other" and "otherwise" are not to be construed as being limited by any words preceding them.

2. ​Orders

2.1            These Terms govern the Agreement between the parties to the exclusion of any other terms that Purchaser seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2            The Order constitutes an offer by Purchaser to purchase the Material in accordance with these Terms. Purchaser is responsible for ensuring that the details of the Order submitted by Purchaser are complete and accurate.

2.3            Extracellular shall use reasonable business efforts to notify Purchaser if the Material requested in an Order cannot be fulfilled; otherwise Extracellular will notify Purchaser of the estimated delivery date for such Materials.

2.4            The Order shall only be deemed to be accepted when Extracellular issues a written acceptance of the Order, at which point the Agreement shall come into existence.

2.5            Prior to Extracellular's notification to Purchaser of acceptance of an Order, Purchaser may cancel the outstanding Order by providing Extracellular with written notice of cancellation. In such cases, if payment has already been made by Purchaser, Extracellular will refund the full payment amount. Once Extracellular has accepted an Order, such Order shall become non-cancellable without Extracellular's prior written consent.

2.6            Extracellular reserves the right to reject any Orders received. In case an Order is rejected, any amount paid by Purchaser at the time of placing the Order will be refunded.

3. ​Delivery

3.1            Extracellular will use reasonable business efforts to fulfil each accepted Order within a reasonable period of time. All shipping dates specified by Extracellular are Extracellular's best approximation of the anticipated shipping date and shall not be deemed to represent a fixed or guaranteed shipping date. Extracellular reserves the right to ship all of the Material covered by any Order at one time or in separate parts or lots from time to time.

3.2            All Materials shall be shipped to Purchaser EXW (Extracellular Facility) INCOTERMS 2020, unless otherwise agreed in writing signed by Extracellular. All risk of loss, damage, or destruction of the Material shall pass to Purchaser on delivery of Material by Extracellular to the carrier at Extracellular’s facility. Extracellular will select the mode of shipment and the carrier. Extracellular will be responsible for pre-carriage costs and arrangements up to the point that the goods are delivered to the carrier, and Purchaser will be responsible for and pay all packing, shipping, freight, and insurance charges and export costs thereafter.

3.3            Purchaser shall be responsible for and shall promptly pay all sales, use, value added, withholding, and other taxes and duties, if any, levied or imposed on either party as a result of the transactions contemplated by the Agreement and Extracellular will be promptly reimbursed for any and all taxes or duties (excluding income taxes) that Extracellular may be required to pay in connection with the Agreement.

3.4            Any changes to the scope of the Order shall be set forth in a written amendment executed by an authorised representative of Purchaser and Extracellular.

3.5            Purchaser shall immediately accept or reject Material upon delivery from Extracellular, and provide a prompt written statement of nonconformities to be corrected by Extracellular prior to Purchaser's acceptance of Material; provided, however, that if Purchaser fails to provide such written notice of non-conformance within ten (10) days of Purchaser's receipt of such Material, the Material will be deemed to have been accepted by Purchaser.

4. ​       Price and Payment

4.1            Purchaser shall pay the total cost of the Order upfront for each Order on Extracellular's webstore. The Order will not be considered an offer to purchase the relevant Materials until payment in full has been received by Extracellular.

4.2            All payments to Extracellular shall be made in Great British Pounds, free of currency controls or other restrictions, and are exclusive of all sales, use, value added, withholding, and other taxes and duties. Purchaser shall be responsible for and shall promptly pay all sales, use, value added, withholding, and other taxes and duties, if any, levied or imposed on either Party as a result of the transactions contemplated by the Agreement, and Extracellular will be promptly reimbursed for any and all taxes or duties (excluding income taxes) that Extracellular may be required to pay in connection with the Agreement.

5. ​Use of the materials

5.1            Except with the written consent of Extracellular, Purchaser will not sell, offer for sale, market, gift, transfer, or otherwise supply Extracellular Material to any third party.

5.2            Purchaser shall comply with all applicable laws, regulations and ordinances, including but not limited to those pertaining to the following: export control, transportation of organisms and vectors, and introduction or use of chemical substances. Purchaser shall maintain in effect all required licenses, permissions, authorisations, consents, and permits. Purchaser shall comply with all applicable export and import laws in its purchase of Material hereunder and assumes all responsibility for all shipments governed by such laws. Extracellular may terminate the Agreement or suspend delivery if any governmental authority imposes restrictions on the Material.

6. ​Warranties

6.1            Extracellular warrants that cells and microorganisms included in the Material shall be viable upon initiation of culture for a period of thirty (30) days after shipment thereof from Extracellular.

6.2            Purchaser's exclusive remedy, and Extracellular's sole liability, for breach of the warranties set forth in this Clause 6 is for Extracellular to, at Extracellular's sole option, either (i) refund the fee paid to Extracellular for such Material (exclusive of shipping and handling charges), or (ii) replace the Material.

6.3            The warranties set forth in this Clause 6 apply only if Purchaser handles and stores the Material as described in the applicable Material information sheet.  To obtain the exclusive remedy, Purchaser must report the lack of viability or non-conformation to specifications to cells@extracellular.com.

6.4            Except as expressly provided in Clause 6.1 above, Material and any other documentation, information and assistance provided by Extracellular are provided "as is", without representations or warranties of any kind, and Extracellular hereby disclaims all representations and warranties, whether express or implied; including, but not limited to, any warranties of merchantability, fitness for a particular purpose, typicality, safety, accuracy, and/or non-infringement.

7. ​Publicity

Except as required to comply with applicable laws, Purchaser shall not mention or otherwise use the name, insignia, symbol, trade mark, trade name, or logotype of Extracellular (or any abbreviation or adaptation thereof) in any publication, press release, promotional material, or other form of publicity regarding the provision of Services without the prior written approval of Extracellular in each instance.

8. ​Indemnification

8.1 ​Purchaser agrees to indemnify, defend, and hold harmless Extracellular, its affiliates, and their respective directors, officers, employees, and personnel from and against all liabilities, costs, expenses, damages and losses suffered or incurred by Extracellular resulting from any third party claims, actions or proceedings ("Claims") arising out of, attributable to, or resulting from any Purchaser's:

​(a)             use, handling, or storage of Extracellular Material and any materials, products, or services based upon or relating to ​Extracellular Material, including but not limited to any claim that any such use, handling or storage infringes upon any third ​party intellectual property rights;

​(b)             negligent or reckless acts or omissions, or wilful misconduct;

​(c)              breach of any covenant, representation or warranty of Purchaser under the Agreement; or

​(d)             failure to comply with applicable laws.

8.2            Extracellular shall provide Purchaser prompt notice of any such Claim, including a copy thereof, served upon it, and shall cooperate fully with Purchaser and its legal representatives in the investigation of any such Claim, at Purchaser's expense. Purchaser shall have the right to exercise sole control over the defence and settlement of any such Claim, including the sole right to select defence counsel and to direct the defence or settlement of any such Claim; provided that Purchaser shall not enter into any settlement that admits fault or liability on Extracellular's part without the prior written consent of Extracellular.

8.3            Extracellular shall have the right to select and to obtain representation by separate legal counsel. If Extracellular exercises such right, all costs and expenses incurred by Extracellular for such separate legal counsel shall be borne by Extracellular.

8.4            Purchaser shall be relieved of any indemnification obligation hereunder if Extracellular either:

​(a)             compromises or settles any Claim without Purchaser's prior written approval; or

​(b)             makes any admission or takes any other action with respect to any such Claim that is prejudicial to the defence of such Claim, without Purchaser's prior written approval.

9.               Limitation of Liability

9.1            Except for liability arising under the Purchaser's indemnity obligations for claims asserted by third parties, and to the extent not prohibited by law, in no event shall either party hereunder be liable to the other party hereunder for any:

​(a)             loss of profits;

​(b)             loss of sales or business;

​(c)              loss of agreements or contracts;

​(d)             loss of anticipated savings;

​(e)             loss of use or corruption of software, data or information;

​(f)               loss of or damage to goodwill; or

​(g)             indirect or consequential loss;

 arising from or in relation to the Agreement, the purchased Material (whether in contract, tort, negligence, strict liability, by statute or otherwise). This limitation shall apply even if such party has been advised or is aware of the possibility of such damages. Extracellular's maximum aggregate liability to Purchaser hereunder for any claim related to, or in connection with, the Agreement or Materials (whether in contract, tort, negligence, strict liability, by statute or otherwise) shall be limited to an amount equal to the total payments by Purchaser to Extracellular for the relevant Material under the applicable Agreement. This remedy is intended to be the sole and exclusive remedy of Purchaser under the Agreement. Should this sole and exclusive remedy fail of its essential purpose, however, Extracellular will return the purchase price to Purchaser minus the reasonable value of Purchaser’s use of the purchased Materials or services.

9.2            This Clause 9 shall survive termination of the Agreement.

10.            Force Majeure Events

In the event Extracellular is delayed or hindered in or prevented from the performance of any act required hereunder by reasons of strike, lockouts, labour troubles, inability to procure materials, failure of power or restrictive governmental or judicial orders or decrees, riots, insurrection, war, acts or God, acts of terrorism, inclement weather, natural disaster or other similar reasons or cause beyond its control ("Force Majeure Event"), then performance of such act shall be excused for the period of such delay, provided that Extracellular provides prompt written notice of such event, and uses reasonable efforts to avoid or remove the cause of such Force Majeure Event, and shall resume performance of its obligations as soon as practicable thereafter.

11. ​Entire agreement

The Agreement will constitute the entire agreement among the parties with respect to the subject matter herein and supersede all prior and contemporaneous agreements, whether written or oral, of the parties hereto, relating to the subject matter herein. For the avoidance of doubt, any terms and conditions or other notations provided by Purchaser on an Order form or any other form or order, whether inconsistent with or supplemental to the Agreement, are hereby rejected and shall be void and of no force or effect.

12. ​Assignment

12.1         Neither party may assign or otherwise transfer the Agreement, or any rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, except that Extracellular may assign its rights under the Agreement and shall give notice to the Purchaser of such assignment.

12.2         Any attempted sale, pledge, assignment, sublicense or other transfer in violation of Clause 12.1 shall be void and of no force or effect, provided, however, either party may, without such consent, assign the Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially of its business, or in the event of its merger, consolidation, change in control or similar action.

12.3         The Agreement shall be binding upon the parties, their legal representatives, and permitted successors and assigns.

13. ​Disputes

13.1         If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of it, the parties agree to then discuss in good faith to reach a satisfactory outcome for both parties.

13.2         If no decision can be reached within thirty (30) days in accordance with Clause 13.1, outstanding disputes, controversies or claims arising under or related in any manner to the Agreement ("Disputes") shall be resolved in accordance with this Clause 13, and any issue concerning the extent to which any Dispute is subject to arbitration, or any dispute concerning the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, shall be governed by the Arbitration Act 1996 (as the same may be amended or supplemented from time to time) and resolved by the arbitral tribunal constituted hereunder. Excluding any actual or threatened breaches of confidentiality or intellectual property rights for which the parties may obtain injunctive or other equitable relief in a court of law as provided in this Clause 13, these arbitration procedures shall be the sole and exclusive process for the resolution of any such Dispute; provided however, if a claim seeks both equitable relief and other relief, the portion of the claim that seeks relief other than equitable relief shall be dismissed without prejudice so as to be resolved by binding arbitration as provided below.

13.3         Disputes shall be governed by and construed in accordance with the substantive laws of England and Wales, without regard to its conflicts of law rules, and shall be resolved and decided pursuant to the rules of arbitration of The London Court of International Arbitration ("LCIA") and conducted in London, England before a panel of three arbitrators (one arbitrator chosen by each of the parties and the third arbitrator chosen by the first two, unless the parties agree otherwise in writing), at least two (2) of whom shall have a minimum of five (5) years of experience in providing services in the biotechnology or pharmaceutical fields; provided however no potential arbitrator shall be appointed unless he or she has agreed in writing to abide and be bound by the Agreement and procedure. In the event of any conflict between the LCIA rules and any provisions of the Agreement, the terms of the Agreement shall govern.

13.4         The parties acknowledge that time is of the essence in the initiation and completion of the arbitration, and that unless the arbitral tribunal expressly orders otherwise, the Dispute should be submitted to the tribunal for decision within nine (9) months after the commencement of the arbitration, and its final award shall be rendered within ninety (90) days thereafter. The parties agree that notifications of any proceedings, reports, communications or any other document in connection with a Dispute shall be in English and sent as set forth in Clause 14 of these Terms. The arbitration panel may only award damages as provided for under the Agreement. The arbitrators shall have the authority to allocate between the parties, the costs of arbitration, including but not limited to reasonable attorneys’ fees, in such equitable manner as they determine. The parties irrevocably agree that the judgment of the arbitration panel shall be final and binding on the parties and their permitted successors and assigns, and shall be enforceable in any court of competent jurisdiction.

13.5         The parties agree that all legal actions or proceedings seeking injunctive or equitable relief, as well as any proceeding to enforce an arbitral award hereunder, shall be brought exclusively in the courts of England and Wales, and the parties hereby irrevocably consent and submit to such jurisdiction and venue.

14. ​Notices

Any notices provided for or required under this Agreement shall be in writing and delivered to the parties at the postal addresses set forth in the Order, by (a) first class certified mail, return receipt requested, or (b) a nationally-recognised overnight courier service.

15. ​Third party rights

A person who is not a party to the Agreement shall not have any rights under or in connection with it.

16. ​Relationship

Nothing in the Agreement creates, implies or evidences a partnership or joint venture between the parties, or authorises a party to act as agent for the other.

17. ​Waiver of rights

No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law will constitute a waiver of that (or any other) right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that (or any other) right or remedy.

18. ​Unenforceable provisions

If the whole or any part of any provision of the Agreement is void or unenforceable in any jurisdiction, the other provisions of the Agreement, and the rest of the unenforceable provision, will continue in force in that jurisdiction, and the validity and enforceability of that provision in any other jurisdiction will not be affected.

19. ​Counterparts

The Agreement may be executed in any number of counterparts, each of which is an original, but all of which together will constitute one document.

20. ​Governing law

The Agreement (and any claim relating to it, its subject matter, its enforceability or its termination, including non-contractual claims) is governed by and construed in accordance with the laws of England and Wales.