General Terms & Conditions

1. Acceptance of terms

Your access to and use the webshop shop.etherna.be (the “Website”) is subject exclusively to these terms and conditions. You will not use the Website or place and order for any purpose that is unlawful or prohibited by these terms and conditions. By using the Website you are fully accepting the terms, conditions and disclaimers contained in this Website. If you do not accept these Terms and Conditions you must immediately stop using the Website.

These terms and conditions are the sole terms and conditions that apply to the relationship between you and etherna immunotherapies nv (“etherna”) when using this Website or buying goods via this website. Insofar as necessary, by using this Website you explicitly waive your own terms and conditions from applying.

etherna reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to all or any part of the Website or its content at any time and for any reason without prior notice or liability.

2. Advice

The contents of the Website do not constitute advice and should not be relied upon in making or refraining from making, any decision.

3. Changes to website

etherna reserves the right to:

a) change or remove (temporarily or permanently) the Website or any part of it without notice and you confirm that etherna shall not be liable to you for any such change or removal; and
b) change these terms and conditions at any time, and your continued use of the Website following any changes shall be deemed to be your acceptance of such change. If you don’t agree with the new terms and conditions, you are free to reject them; unfortunately, that means you will no longer be able to use the Website.

4. Links to third party websites

The Website may include links to third party websites that are controlled and maintained by others. Any link to other websites is not an endorsement of such websites and you acknowledge and agree that etherna is not responsible for the content or availability of any such sites.

5. Prohibitions

You agree not to;

a) take any action that imposes an unreasonable load on the Website’s infrastructure,
b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any activity being conducted on the Website,
c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Website,
d) delete or alter any material posted on the Website by etherna or any other person or entity,
e) frame or link to any of the materials or information available on the Website,
f) distribute any virus, Trojan horse, disabling device, time bomb or other code that may impact the operation of the Website, or use the Website to distribute any of the foregoing.

You represent, warrant, and agree that you will not contribute any content or otherwise use the Website or interact with the Website in a manner that:

a) infringes or violates the intellectual property rights or any other rights of anyone else (including etherna),
b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by etherna,
c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable,
d) attempts, in any manner, to obtain the password, account, or other security information from any other user,
e) violates the security of any computer network, or cracks any passwords or security encryption codes,
f) runs Maillist, Listserv, any form of auto-responder or “spam” on the Website, or any processes that run or are activated while you are not logged into the Website, or that otherwise interferes with the proper working of the Website (including by placing an unreasonable load on the Website’s infrastructure),
g) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Website or content (through use of manual or automated means), or
h) copies or stores any significant portion of the content on the Website.

A violation of any of the foregoing is grounds for termination of your right to use or access the Website. etherna also reserves the right to recover from you any damages, whether direct or indirect, it incurs.

6. Copyrights

a) All copyright, trade marks and all other intellectual property rights in the Website and its content (including without limitation the Website design, text, graphics and all software and source codes connected with the Website) are owned by etherna.
b) In accessing the Website you agree that you will access the content solely for purchasing purposes. None of the content may be downloaded, copied, reproduced, transmitted, stored, sold or distributed without the prior written consent of the copyright holder.

7. Product purchase terms

The product that is being sold via the Website concerns mRNA developed and manufactured by using etherna’s proprietary UTR’s/etherna’s plasmids containing proprietary UTR’s (the “Product”). In light thereof, special attention of the buyer is drawn to the intellectual property section that relate to this Product.

b. B2B sale
Products can only be bought via this Website by professional buyers (i.e. pharma companies, biotech companies, academic and research institutions and potentially government bodies or similar) who have not been blacklisted by a European country or the United States of America nor may buyer be directly or indirectly connected to a terrorist organization.

c. Territory
Buyer can only buy Products via this Website if the if the country of destination of the Product is part of the European Union.

d. Limitation to the use of the Product by the buyer
The Product bought via this Website can only be used by the buyer for research purposes only. Buyer is explicitly prohibited to use the Product for any other purpose (e.g.., but not limited to, for therapeutic or diagnostic purposes). In light thereof, buyer explicitly guarantees that it will not be used for any other purposes, including, but not limited, human use, in any form. The buyer shall be solely responsible for ensuring that the buyer's intended use of the Products does not violate statutory law and that all required permits have been granted. In case of usage of the Product for any other purpose or by a non-professional, the buyer will hold etherna fully harmless at first written request for any damage claim in light thereof.

Furthermore, buyer is not entitled to, directly or indirectly, sell, export, re-export, transfer or otherwise dispose of the Product to any destination, entity or person. However, buyer is allowed to transfer the Product to an Affiliate of buyer for as long the Affiliate complies with the terms and conditions of this Website. “Affiliate” means any corporation, partnership or other entity controlled by, controlling or under the common control of buyer, with “control” meaning direct or indirect beneficial ownership of more than fifty percent (50%) of the issued share capital or other equity interest or the legal power to direct or cause the direction of the general management and policies.

e. Intellectual property

• etherna does not warrant that the production, use or sale of the Products delivered hereunder will not infringe the claims of any patents or patents pending. All and any use of Product is the buyer’s sole responsibility. etherna has obtained a non-exclusive license from TriLink Biotechnologies LLC covering the research use (including clinical experimentation) by buyer of mRNA containing CleanCap (both AG and AG 3’Ome). Commercial use of etherna-manufactured mRNA is not included in the aforementioned license and such use requires buyer to obtain an appropriate license from TriLink Biotechnologies LLC directly. If buyer does not obtain such a license and uses the etherna manufactured mRNA for a purpose other than research use, buyer will hold etherna fully harmless at first request for any claim from TriLink Biotechnologies LLC.
• Third party IP rights on modified NTPs, such as N1methylPseudoUridine and 5MethoxyUridine, may exist in buyer’s territory and covering buyer’s specific use of mRNA containing modified NTPs; licenses to such third party IP is buyer’s sole responsibility. In the absence of such a license, buyer will safeguard and fully hold harmless etherna for any third party claim in relation to such third party intellectual rights.
• Background IP provided by etherna remains the sole and exclusive property of etherna.
• Any use methods, processes, …. and/or related intellectual property (including know how), existing or developed during the process is and remains owned or controlled by etherna (“etherna technology”).
• No other rights to etherna’s intellectual property rights (incl know how) are granted to buyer, except for those explicitly provided for under this section.
• UTR’s or plasmid template including proprietary UTR’s (and UTR IP or plasmid IP as well as any improvements to the UTR’s or plasmids), and any improvements thereto, that are included in the Product, will and remain the property of etherna. However, subject to buyer having pay in full for the ordered Product, buyer is hereby granted a non-sublicensable, non-transferable (except to an Affiliate as reflected under Section 7.d above), non-exclusive, worldwide (except for the countries China, Hong Kong, Macau and Taiwan), pre-clinical research purpose only, license to these UTR’s and UTR IP that are included in the Product.

 

f. No reverse engineering
Buyer shall not have the right to modify, independently recreate or re-engineer either the Product or etherna technology or any materials that are proprietary to etherna.

g. Prices
All prices are EXW (Incoterms 2000). The buyer shall bear the costs for shipment, which will be charged separately at the applicable rates.

Prices quoted, unless otherwise expressly stated, are exclusive of any sales, use or excise taxes (including VAT), customs duties, imposts or other assessments of any kind, value-added or similar taxes, which may arise from the manufacture, processing, sale, delivery or shipment of the products or services. Buyer shall be responsible for paying such taxes, duties or other assessments. If such taxes, duties or other assessments are paid for by etherna, etherna will add them to the invoice.

Buyer must pay all prices due at the moment of placing the order via the Website. When buyer does not comply with this condition, an order will be deemed not to have been placed by buyer and etherna must note take the order into account for production purposes.

All prices are expressed in EUR and must be paid in EUR. Any currency risk is to be borne in full by buyer.

h. Cancellation of an order
In case buyer has placed and paid an order, but wishes to cancel the order, it must immediately contact etherna. In case the order is already in production, no reimbursement will be made in light of the cancellation. In case the order is not yet in production, a cancellation fee of 50% of the order will be charged and the balance will be reimbursed to buyer on the same bank account as from which payment of the order was made.

I. Performance and delivery
Delivery dates reflected on this Website are best estimates and for information purposes only. Deadlines for Products shall begin to run when full payment of the ordered Products has been received on the bank account of etherna.

Delivery dates shall be deemed to have been met if, on or before this date, the Products have left etherna’s facilities or are ready for dispatch and the buyer has been notified accordingly.

etherna shall not be in breach of these terms and conditions or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (i.e. in case of a force majeure-event).

Shipments of products shall be EXW (Incoterms 2000) etherna's facility Niel. For the avoidance of doubt, and without being limited in any way, it is buyer who will be responsible for and bear the costs of any transport as of etherna’s facility. Any damage to the Products during such transportation by, or on behalf of, buyer will be the responsibility of buyer.

Import, export and/or the transport of products outside of Belgium shall be subject to the import and/or export regulations applicable in Belgium, the European Union, the country imported to, and in all other relevant jurisdictions, as the case may be. The buyer shall be solely responsible for the procurement of relevant approvals and permits.

The generation, collection, storage, handling, transportation, movement and release of hazardous materials and waste generated in connection with the Product bought will be the responsibility of buyer at buyer’s sole cost and expense. Buyer will prepare, execute and maintain, as generator of waste, all licenses, registrations, approvals, authorizations, notices, shipping documents and waste manifests required under applicable law.

j. Inspection and acceptance
The buyer shall inspect the products within 14 calendar days of buyer's receipt of the Products and shall give written notice to etherna specifying any alleged non-conformance, defect, damage, or shortage. The buyer shall be deemed to have accepted the Products as being free from any defect, damage, shortage, or any other deficiency whatsoever, unless such notice has been given in writing and received by etherna by (i) 14 calendar days after buyer’s receipt of the Products, in the case of any non-conformities or deficiencies reasonably ascertainable by visual inspection or routine testing procedures, or (ii) 7 calendar days after buyer learns of the facts giving rise to the claim, in the case of any other non-conformities or deficiencies not reasonably ascertainable by visual inspection or routine testing procedures. Buyer's failure to give notice of any claim within the applicable time period specified above, shall be deemed an absolute and unconditional waiver of such claim, irrespective of whether the facts giving rise to such claim shall have been discovered or whether processing or use of the Products shall have then taken place. etherna reserves the right to inspect and test the product objected in each case of a notification of defects by buyer.

k. Contact
In case of problems regarding the Product or any order placed via this Website, buyer can contact etherna via the following:

• E-mail: orders@etherna.be (reply within 5 working days)
• Phone: +32 3 369 17 30 (between 9.30 AM and 4 PM (Brussels time))

m. Limitation of liability relating to the product
etherna's sole liability, and buyer's sole and exclusive remedy, with respect to any non-conforming Product delivered shall be, at etherna's option, (i) re-delivery of the non-conforming Products or (ii) a refund of the payments allocable to the non-conforming Products.

etherna's total aggregate liability under or in connection with these terms and conditions and the order placed hereunder, including any warranty liability and indemnification/hold harmless liability (whether in contract, tort including negligence, breach of statutory duty, restitution or otherwise) in respect of all and any loss or damage howsoever caused (except for any loss or damage arising out of etherna's gross negligence, willful misconduct or breach of its confidentiality obligations under these terms and conditions) will be limited to the total amount of fees payable by buyer to etherna under or in connection with these terms and conditions and the order placed hereunder. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ETHERNA SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION PROPERTY DAMAGE, LOST PROFITS OR OTHER ECONOMIC LOSS, ARISING IN CONNECTION WITH THESE TERMS AND CONDITIONS. THIS LIMITATION OF LIABILITY WILL APPLY UNDER ANY LEGAL THEORY AND REGARDLESS OF THE FORM OF ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND.

Without limitation to the generality of the foregoing limitation, etherna shall not be liable for any damage or loss caused by the negligent or unapproved use of the Products. Buyer shall defend, indemnify and hold harmless etherna from and against any and all losses, costs and expenses, including without limitation reasonable attorneys' fees, in any way arising out of or relating to (i) any negligent or improper use of the Products, (ii) any failure of buyer to comply with laws, regulations, guidelines or decisions in the handling or use of the Products, or (iii) any violation or infringement of any patent or other proprietary rights of third parties by buyer in the handling or use of the Products.

n. Miscellaneous
For the avoidance of doubt, this section ‘Product purchase terms’ forms part of the terms and conditions of this Website. The terms and conditions complement this section where needed.

8. Review of buyer

All orders placed with etherna are subject to, at the discretion of etherna, verification of the buyer (and its organization), order verification and payment review. Customers must provide the necessary information as requested on the Website in light thereof in order to facilitate this process. The payment review process may cause a delay in the shipment of your order, so replying to requests for additional information quickly is important. Order verification requests that do not receive a response will result in the cancelation of your order and reimbursement of the paid amount. etherna may, and buyer hereby agrees, at all times, cancel an order in light of this verification process for whatever reason. etherna cannot be held liable of responsible by buyer in case of such cancellation.

Please note that via this Website one can only buy Products if the country of destination is part of the European Union. Non-compliance with these geographical conditions will also result in the cancelation of your order and reimbursement of the paid amount.

9. Indemnity and liability regarding the Website

a) The Website is provided on an “AS IS” and “AS AVAILABLE” basis without any representation or endorsement made and without warranty of any kind whether express or implied, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy.
b) To the extent permitted by law, etherna will not be liable for any indirect or consequential loss or damage whatever (including without limitation loss of business, opportunity, data, profits) arising out of or in connection with the use of the Website.
c) etherna makes no warranty that the functionality of the Website will be uninterrupted or error free, that defects will be corrected or that the Website or the server that makes it available are free of viruses or anything else which may be harmful or destructive.
d) Nothing in these terms and conditions shall be construed so as to exclude or limit the liability of etherna for death or personal injury as a result of the negligence of etherna or that of its employees, representatives or agents.
e) You agree to indemnify and hold etherna and its employees, representatives and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against etherna arising out of any breach by you of these terms and conditions or other liabilities arising out of your use of this Website or the Product you buy via the webshop.

10. GDPR and Privacy policy

a. General
The terms used in this privacy policy and our data protection practice are based on the provisions of the EU General Data Protection Regulation ("GDPR") and other relevant national legal provisions.

Personal data could be collected from you when you expressly communicate such data to us (f.ex. in light of ordering Products). Certain data will be automatically collected when you visit our Website. Some of this data is collected to ensure that the Website functions without errors.

b. Data Collector
etherna immunotherapies nv
Galileilaan 19
2845 Niel
Belgium

e-mail: orders@etherna.be
phone: +32 3 369 17 40

You yourself decide on the use of your personal data. Should you therefore wish to exercise one of your rights reflected in this Article towards us, you are welcome to contact us by email as well as by telephone.

c. Responsible data protection authority in Belgium
Gegevensbeschermingsautoriteit
Drukpersstraat 35,
1000 Brussels
Belgium

e-mail: contact@apd-gba.be
phone : +32 (0)2 274 48 00

d. Use of your information
Generally, we process your data when necessary to fulfill a contractual obligation (for example, to process your order via the webshop) or when we or people we work with need your personal data for reasons related to their business (for example, to provide you with a service). Under European Economic Area (“EEA”) regulations, these are referred to as “legitimate interests.” These “legitimate interests” include:

• preventing risk and fraud
• answering questions or offering other support
• providing and improving our products and services
• fulfilling and managing your orders
• sending administrative information to you
• providing reporting and analytics
• testing features or additional services
• assisting with marketing, advertising or other communications
• facilitating account creation and authentication and otherwise managing user accounts
• enabling user-to-user communications

We process personal data only for these “legitimate interests” after we have assessed the potential risk to your privacy and have covered any risks with certain measures, for example, by providing you with a clear understanding of our privacy practices, giving you control over your personal data where necessary, limiting the data we retain, securing your data through technical measures, and exercising restraint in what we do with your data, to whom we provide your data and how long we retain your data.

We may also process your personal data if you have given your consent to do so. In particular, we do so when there is no other legal basis for processing, when you instruct us to transfer your data to a third party, when we receive your data from a third party and consent is already in place, or when we are required by law to seek your consent (including in connection with certain sales and marketing activities). You have the right to withdraw your consent at any time by changing your choices about communications, unsubscribing from our communications, or contacting us.

e. Cookies and local storage
We use cookies to make the Website as user-friendly and functional as possible for you. Some of these cookies are stored on the device you use to access the site.

Cookies are small packages of data that are exchanged between your browser and our web server whenever you visit our Website. They do not cause any damage and are used solely to recognize website visitors. Cookies can only store information provided by your browser, e.g. information that you have entered into your browser or that is available on the website. Cookies cannot execute code and cannot be used to access your terminal device.

The next time you access our website using the same device, the information stored in the cookies can then either be sent back to us (“first-party cookie”) or to a web application of third party to whom the cookie belongs (“third-party cookie”). The information that is stored and sent back allows each web application to recognize that you have already accessed and visited the website using the browser on your device.

Cookies contain the following information:

• Cookie name
• Name of the server from which the cookie originates
• Cookie ID number
• An expiry date, after which the cookie will be automatically deleted

We classify cookies in the following categories depending on their purpose and function:

• Technically necessary cookies, to ensure the technical operation and basic functions of our website. These types of cookies are used, for example, to maintain your settings while you navigate our website; or they can ensure that important information is retained throughout the session (e.g. login, shopping cart).
• Statistics cookies, to understand how visitors interact with our website by collecting and analyzing information on an anonymous basis only. In this way, we gain valuable insights to optimize both the website and our products and services.
• Marketing cookies, to provide targeted promotional and marketing activities for users on our website.
• Unclassified cookies are cookies that we are trying to classify together with individual cookie providers.

The legal basis for using technically necessary cookies is our legitimate interest in the technically fault-free operation and smooth functionality of our Website. The use of statistics and marketing cookies is subject to your consent. You can withdraw your consent for the future use of cookies at any time. Your consent is voluntary. If consent is not given, no disadvantages arise. 

You can also set your web browser so that it does not store any cookies in general on your device or so that you will be asked each time you visit the site whether you accept the use of cookies. Cookies that have already been stored can be deleted at any time.
Please note that a general deactivation of cookies may lead to functional restrictions on our Website.

f. Use of Shopify
Our Website operates via the system of Shopify (www.shopify.com/be). All GDPR and privacy policies applicable to that website, will also apply to our Website and related webshop.

g. Contact
Whenever you contact us, your information is used to process and handle your contact request in the course of fulfilling pre-contractual rights and obligations. To handle and answer your request it is necessary for us to process your data; otherwise we are unable to answer your request or only able to partially answer it. Your information can be stored in a database of customers and leads on the grounds of our legitimate interest in direct marketing.

We delete your request and contact information when your request has been definitively answered and there is no legally required time limit for storing this data prior to deletion (e.g. pursuant to a subsequent contractual relationship). This is usually until the expiry of either the fifth year following the last contact with a business partner or your account has been deleted on the webshop, whichever is latest.

h. Webshop
We process data of our customers (amongst others, payment data and contract data in the context of the execution of order processes in our webshop). This is done for the purpose of selecting and ordering the selected products and/or services, as well as their payment and delivery or execution.

The purpose of the processing is the provision of contractual services within the framework of the operation of our webshop, the billing of deliveries and services, the delivery of products, and the performance of services. 

The processing is carried out for the purpose of fulfilling the contract on the basis of Art. 6 paragraph 1 lit. b GDPR for the processing of orders and furthermore according to Art. 6 paragraph 1 lit. c GDPR for the fulfilment of legal storage obligations based on trade and tax regulations. We transmit the data to third parties only for the provision of our services (e.g. to involved transport), for the processing of payment transactions (e.g. to banks, payment service providers, tax authorities or consultants) or within the scope of our legal rights and obligations, as well as within the scope of our legitimate interest in the appropriate legal prosecution in accordance with Art. 6 paragraph 1 lit. f GDPR vis-à-vis legal advisors, courts and authorities in the event of an incident.

The data will only be processed in third countries if this is absolutely necessary for the fulfilment of the contract (e.g. at the customer's request on delivery or payment) and insofar as appropriate data protection guarantees are available. Any other transfer of data to third parties will only take place with your express consent in accordance with Art. 6 paragraph 1 lit a GDPR.

Users might be able to create a user account, e.g. by viewing their orders. User accounts are not visible to the public. If users have terminated their user account, their data will be deleted with regard to the user account unless their retention is absolutely necessary for commercial or tax reasons in accordance with Art. 6 paragraph 1 lit. c GDPR or is necessary due to our legitimate interest in enforcing the law in accordance with Art. 6 paragraph 1 lit. f GDPR. It is the responsibility of the users to secure their data before the end of the contract in the event of termination.

Within the scope of registration and in the case of renewed registration and use of our online services, we store the IP address and the time of the respective user action. The storage takes place on the basis of our legitimate interests pursuant to Art. 6 paragraph 1 lit. f GDPR, as well as in the legitimate interest of the users themselves for protection against misuse and against other unauthorized use. This data is not passed on to third parties unless it is necessary to pursue our claims or there is a legal obligation to do so pursuant to Art. 6 paragraph 1 lit. c GDPR.

The data will be deleted after expiry of statutory warranty and compensation obligations or other contractual or statutory obligations. The deletion of the data takes place after the expiry of legal warranty and compensation obligations or other contractual or legal obligations. 

i. Processing of personal data
Unless more specific information is provided in this privacy policy (e.g. in the case of the technologies used), we may process personal data from you on the basis of the following legal principles:

• Consent in accordance with Art. 6 paragraph 1 lit. a of the GDPR - The data subject has given his or her consent to the processing of his or her personal data for one or more specific purposes.
• Fulfillment of a contract and pre-contractual measures pursuant to Art. 6 paragraph 1 lit. b of the GDPR - Processing is necessary for the fulfillment of a contract to which the data subject is a party or for the implementation of pre-contractual measures.
• Legal obligation pursuant to Art. 6 paragraph 1 lit. c of the GDPR - Processing is necessary for the performance of a legal obligation.
• Protection of vital interests pursuant to Art. 6 paragraph 1 lit. d of the GDPR - Processing is necessary to protect the vital interests of the data subject or of another natural person.
• Reasonable interests pursuant to Art. 6 paragraph 1 lit. f of the GDPR - The processing is necessary to protect the legitimate interests of the controller or of a third party unless the interests or fundamental rights and freedoms of the data subject prevail.

11. Severance

If any of these terms and conditions should be determined to be invalid, illegal, or unenforceable for any reason by any court of competent jurisdiction then such term or condition shall be severed and the remaining terms and conditions shall survive and remain in full force and effect and continue to be binding and enforceable.

12. Governing law

These terms and conditions shall be exclusively governed by and construed in accordance with Belgian. You hereby explicitly waive the conflict of laws principle as well as the Convention on the International Sale of Goods from applying. You hereby submit to the exclusive jurisdiction of the competent courts of Antwerp, division Antwerp, Belgium.

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