NEXCELOM BIOSCIENCE LLC — TERMS AND CONDITIONS OF SALE
THE TERMS AND CONDITIONS OF SALE CONTAINED HEREIN (“TERMS AND CONDITIONS”) SHALL APPLY TO ALL QUOTATIONS AND OFFERS MADE BY AND PURCHASE ORDERS ACCEPTED BY NEXCELOM BIOSCIENCE LLC (“NEXCELOM”). IF THESE TERMS AND CONDITIONS CONFLICT WITH THE TERMS AND CONDITIONS OF A PURCHASE ORDER OR PROCUREMENT DOCUMENT ISSUED BY BUYER, ACCEPTANCE OF BUYER’S ORDER IS CONDITIONED UPON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS IRRESPECTIVE OF WHETHER THE BUYER ACCEPTS THEM IN WRITING, BY IMPLICATION OR BY ACCEPTANCE OF AND PAYMENT FOR PRODUCTS SOLD HEREUNDER, AND IRRESPECTIVE OF WHEN BUYER’S PURCHASE ORDER OR PROCUREMENT DOCUMENT IS ISSUED OR WHETHER IT PRECEDES OR FOLLOWS ISSUANCE OF THESE TERMS AND CONDITIONS. NEXCELOM’S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM BUYER SHALL NOT BE DEEMED A WAIVER OF THE PROVISIONS HEREIN.
1. PAYMENT TERMS, QUOTES AND PURCHASE ORDERS
1.1 Pricing. Unless stated otherwise, prices are in US dollars and do not include shipping, insurance, customs duty or taxes, all of which shall be borne by Buyer.
1.2 Invoicing. Buyer shall be invoiced for products upon delivery of the applicable products in accordance with Section 2.1 of these Terms and Conditions.
1.3 Payment. Buyer shall pay Nexcelom for all undamaged products subject to a Purchase Order (as defined below) not later than thirty (30) calendar days after the date of Nexcelom’s invoice for the same. Any amounts not paid within such thirty (30) calendar day period shall bear interest at the lesser of the maximum rate allowable under applicable law or two percent (2%) per month. Buyer’s payment of such interest on late payments shall not prevent Nexcelom from exercising any other rights under these Terms and Conditions or applicable law. The foregoing terms of payment may be changed by Nexcelom at any time.
1.4 Taxes. All amounts described herein are exclusive of all federal, state, municipal or other governmental excise, sales, value-added, use, personal property and occupational taxes, withholding obligations and other levies now in force or enacted in the future. Accordingly, all fees payable to Nexcelom are subject to an increase equal to the amount of any such tax, excise or levy Nexcelom may be required to collect or pay in connection with the sale and/or distribution of the products, other than any tax on the net income of Nexcelom.
1.5 Quotes. From time to time, Nexcelom may issue a quotation or proposal (a “Quote”) to Buyer, which shall constitute an offer with respect to specified products that Buyer may order, which may contain certain assumptions, either explicit or incorporated by reference by means of citation to applicable catalogue or product numbers in Nexcelom’s price lists or product documentation published from time to time by Nexcelom. Unless otherwise agreed to in writing, all such Quotes, regardless of whether they reference these Terms and Conditions or not, shall be governed by the provisions contained herein.
1.6 Purchase Orders. Buyer may offer to purchase products by issuing a purchase order, signed by its authorized representative, indicating the specific product(s) to be purchased, quantity, unit price (based upon Nexcelom’ then-current purchase prices, fees and charges), total purchase price, shipping instructions, requested delivery dates and bill-to and ship-to addresses (each, a “Purchase Order” or “Order”).
1.7 Purchase Order Acceptance. All Purchase Orders are subject to approval and acceptance by Nexcelom (each approval and acceptance, a “Confirmation”). Nexcelom may accept a Purchase Order by countersigning or acknowledging the Purchase Order or Nexcelom shall be deemed to have accepted a Purchase Order if Nexcelom ships products pursuant to such Purchase Order. Notwithstanding Nexcelom’s acceptance of any purchase order, Buyer’s purchase of the products will be governed by these terms and conditions and , except for the price and the Product(s) ordered, no terms and conditions of any Buyer purchase order will be enforceable against Nexcelom.
1.8 Cancellation of Purchase Orders. Purchase Orders accepted by Nexcelom are subject to cancellation by Buyer only with the written consent of Nexcelom, and only upon payment by Buyer of reasonable cancellation charges that shall take into account expenses already incurred by Nexcelom or any third parties and commitments made by Nexcelom or any third parties in anticipation of filling the cancelled Purchase Order. Nexcelom shall have the right to cancel any previously accepted Purchase Order or to refuse or delay the shipment thereof in any event on account of failure by Buyer to make promptly any payments due Nexcelom or to comply with these Terms and Conditions or any other material breach of these Terms and Conditions by Buyer.
2. SHIPPING AND DELIVERY, ACCEPTANCE OF PRODUCTS
2.1 Shipping Terms. Except as set forth below, shipping terms for delivery of the products shall be “Origin Collect” (which also may be referred to as “FOB” at Nexcelom’s location). Shipping terms for delivery of the products (and components thereof) shall be “UPS Ground” or similar carrier service. As used herein, “Origin Collect” shall mean that Nexcelom shall exercise commercially reasonable efforts to make the products subject to a Confirmation available for pick-up by a carrier designated by Buyer at Nexcelom’s manufacturing location on or about the estimated delivery date specified in the Purchase Order or, if different, in Nexcelom’s written Confirmation; provided, however, that in no event shall the estimated delivery date be sooner than fourteen (14) days after receipt of the applicable Purchase Order by Nexcelom. Buyer shall be responsible for obtaining insurance. Buyer shall have all risk of loss and damage in transit, and Nexcelom shall not be liable for delays arising during the shipping process. In the event of any delay caused by an act or omission of Buyer or the carrier, the date or dates for delivery of such products to the applicable carrier shall be extended for a period equal to the amount of the delay. Buyer shall be responsible for all costs identified in Sections 1.1 and 1.4 of these Terms and Conditions and, notwithstanding the foregoing, if Nexcelom pays any such costs, Buyer will promptly reimburse Nexcelom therefor.
2.2 Acceptance/Inspection. All products shall be deemed to be accepted on the date the products are delivered to Buyer at the ship-to address set forth in the applicable Purchase Order. Buyer shall inspect all products within five (5) Business Days after deemed acceptance (the “Inspection Period”). Buyer shall notify Nexcelom within the Inspection Period of any missing products or components of products, any delivery of products not ordered, and/or any damage to the delivered products that is or should be obvious upon a visual and physical inspection thereof. As soon as practicable upon receipt of any such notice pursuant to this Section 2.2, Nexcelom shall use commercially reasonable efforts to provide replacement products for missing and/or damaged products (unless any such damage is attributable to an act or omission of Buyer or the carrier or any of their Affiliates). Nexcelom shall bear all expenses for such replacement products to the extent the Buyer previously paid for any corresponding damaged products and/or incomplete shipments. Replacement shipments shall also be subject to the shipping terms set forth in Section 2.1. THE REPLACEMENT OF ANY MISSING AND/OR DAMAGED PRODUCTS PURSUANT TO THIS SECTION 2.2 IS BUYER’S SOLE REMEDY WITH RESPECT TO SUCH MISSING OR DAMAGED PRODUCTS.
3. PROPRIETARY RIGHTS
3.1 Nexcelom’s Proprietary Information. The products have been developed and include certain intellectual property of Nexcelom, including without limitation, software, samples, schematics, specifications, manuals, designs, and other technical, business, trade secret, proprietary and confidential information provided to Buyer by Nexcelom (“Nexcelom Proprietary Information”). Buyer is granted a non-exclusive right and license to use the Nexcelom Proprietary Information solely: (a) as incorporated into, and in conjunction with, the products, (b) in conformance with the specifications, and (c) for Buyer’s internal use. Buyer may not: (i) assign, sublicense, transfer, lease, rent or distribute any of its rights in the Nexcelom Proprietary Information; (ii) port, translate, localize or create derivative works based upon the Nexcelom Proprietary Information in any manner; (iii) reverse assemble, decompile, reverse engineer, translate or otherwise attempt to derive or obtain the source code, the underlying ideas, algorithms, structure or organization of the Nexcelom Proprietary Information; (iv) use the Nexcelom Proprietary Information for the benefit of any third party including as part of any service bureau, time sharing or third party training arrangement; or (v) publish any benchmark testing results on any product or the Nexcelom Proprietary Information without Nexcelom’s written consent. Nexcelom retains all ownership rights in the Nexcelom Proprietary Information and, other than limited license set forth in this section, Buyer shall have no right in or to the Nexcelom Proprietary Information. Buyer will not disclose the Nexcelom’ Proprietary Information to any third party or use it in any manner outside the scope of the license including: (1) developing, designing, manufacturing, engineering, reverse engineering, refurbishing, selling or offering for sale items, parts or components of items, derivatives of or equivalents, or (2) assisting any third party in any manner to perform such activity. Buyer shall use reasonable care to protect Nexcelom Proprietary Information, and in no event less than the care Buyer uses to protect its own like information.
3.2 Use of Trademarks. The trademarks, trade names/business names, trade dress and logos of the owner shall be used only in the form and manner approved by the owner Party in writing prior to commencing use thereof. Any benefit or goodwill associated with the trademarks will inure solely for the benefit of the trademark owner.
3.3 Title. Except as provided in Section 3.1, title to the products shall be deemed to pass to Buyer on the date of pick-up by a carrier designated by Buyer at Nexcelom’s manufacturing location as set forth in Section 2.1 of these Terms and Conditions.
3.4 Export Control. This agreement is expressly made subject to any U.S. government laws, regulations and other restrictions regarding export from the U.S. or re-export of computer software and technology. Buyer agrees not to export or re-export any product or Proprietary Information in contradiction to any applicable export restriction or to use the products in a manner prohibited by an export restriction including, without limitation, for nuclear, chemical or biological weapons proliferation. Buyer agrees to obtain all licenses, permits or approvals required by any government at Buyer’s sole cost and expense.
4. WARRANTY; EXCLUSIVE REMEDIES
4.1 Defective Product. Nexcelom warrants to Buyer that products of its manufacture will be, on the date of pick-up by a carrier designated by Buyer at Nexcelom’s manufacturing location in accordance with Section 2.1 and, for a period ending on: (i) the expiration date printed on the labeling of any consumable product; or, for all other products, (ii) the one (1) year anniversary of the date of pick-up by a carrier designated by Buyer at Nexcelom’s manufacturing location in accordance with Section 2.1 (the “Warranty Period”), shall perform in substantial accordance with the published specifications therefor in the operators manual and other labeling provided with the products (the “Documentation”).
4.1.1 Reporting Period. The limited warranty set forth in this Section 4.1 is subject to the restrictions set forth below and is contingent upon Buyer notifying Nexcelom in writing within thirty (30) calendar days following Buyer’s discovery of any alleged failure to perform, and in no event later than ten (10) calendar days after the end of the Warranty Period.
18.104.22.168 Termination of Warranty. This limited warranty shall terminate with respect to any product upon any transfer or sale of such product by Buyer.
22.214.171.124 Exclusions The limited warranty set forth in this Section 4.1 will not apply with respect to defects or failures to conform caused by (a) neglect, accident, fire or other hazard, unauthorized alteration, modification or repair, including without limitation, installation of unauthorized parts, (b) improper testing, storage, operation, transportation, interconnection, or installation of the products, (c) failure to continually provide a suitable operating environment for the products, (d) damage to the products or defects in the products that were or should have been obvious to Buyer upon a visual and physical inspection thereof during the Inspection Period, unless Buyer has notified Nexcelom thereof during such Inspection Period as provided in Section 2.2 of these Terms and Conditions, or (e) any other cause beyond the range of normal usage of the products (except, in all of the foregoing cases, when caused by Nexcelom or Nexcelom’ authorized agent) (collectively, “Non-Warranty Repairs”). Buyer shall pay Nexcelom all costs of handling, inspection, repair and transportation related to Non-Warranty Repairs at Nexcelom’ then prevailing rates.
4.2 Return of Defective Product. Buyer shall follow Nexcelom’s instructions regarding return of defective product, and no product will be accepted for repair, replacement credit or refund without the written authorization of (in the form of a Material Authorization Number (“RMA#”)) and in accordance with Nexcelom’s instructions. Replaced products hall become Nexcelom’s property. If Nexcelom determines that a returned product was not defective, Buyer shall pay Nexcelom all costs of handling, inspection, repair and transportation related to such product at Nexcelom’s then prevailing rates.
4.3 Buyer’s Sole Remedies. During the Warranty Period, Nexcelom, at its option, will repair or replace any products that prove to have a defect or refund to Buyer the purchase price of the defective product. Any product repaired or replaced will also be warranted for the remainder of the original Warranty Period or sixty (60) calendar days, whichever is the longer. If Nexcelom, in its sole discretion, elects not to repair or replace a product under warranty, Nexcelom will at its sole expense refund to Buyer the purchase price of such product. The repair or replacement of any product, or the refund to Buyer of the purchase price of such product, is Buyer’s sole remedy with respect to the failure of any product to be free from defects in material or to perform in substantial accordance with the published specifications therefor in the Documentation.
4.4 LIMITATION ON WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 4, NEXCELOM MAKES NO WARRANTY, EXPRESS, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCTS OR OTHERWISE IN CONNECTION WITH THESE TERMS AND CONDITIONS, AND HEREBY EXPRESSLY DISCLAIMS ANY OTHER FORM OF WARRANTY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THIS STATED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES PROVIDED BYLAW.
4.5 Product Changes. Nexcelom reserves the right to make changes in the design or construction of any of its products at any time without incurring any obligations to make any such changes on products previously purchased by Buyer.
5. LIMITATIONS OF LIABILITY
5.1 ENTIRE LIABILITY. NEXCELOM ENTIRE LIABILITY AND BUYER’S EXCLUSIVE REMEDIES AGAINST NEXCELOM FOR ANY DAMAGES CAUSED BY ANY PRODUCT DEFECT OR FAILURE, OR ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY WORK. REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE AS FOLLOWS:
5.1.1 FOR DAMAGED PRODUCTS OR INCOMPLETE DELIVERIES: THE REMEDIES SET FORTH IN SECTION 2.2.
5.1.2 FOR PRODUCT DEFECTS OR FAILURE: THE REMEDIES STATED IN THE WARRANTY SECTION;
5.1.3 FOR DELAYS IN DELIVERY: NONE UNLESS THE DELIVERY IS DELAYED BY MORE THAN THIRTY (30) BUSINESS DAYS BY CAUSES NOT ATTRIBUTABLE EITHER TO BUYER, THE CARRIER OR TO FORCE MAJEURE CONDITIONS, IN WHICH CASE BUYER SHALL HAVE THE RIGHT, AS ITS SOLE REMEDY, TO CANCEL THE ORDER WITHOUT INCURRING TERMINATION CHARGES.
5.1.4 FOR CLAIMS OTHER THAN SET FORTH ABOVE: NEXCELOM’S LIABILITY SHALL BE LIMITED TO DAMAGES THAT ARE PROVEN, IN AN AMOUNT NOT TO EXCEED THE TOTAL FEES PAID TO NEXCELOM BY BUYER FOR THE PARTICULAR ITEM TO WHICH SUCH LIABILITY RELATES.
5.2 LIMITATIONS. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL NEXCELOM BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, (INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF SERVICE, LOST PROFITS, OR LOSS OF DATA), WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY AND REGARDLESS OF WHETHER OR NOT NEXCELOM WAS ADVISED SUCH DAMAGES MIGHT ARISE.
5.3 SUBSIDIARIES AND AFFILIATES. FOR PURPOSES OF THE EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION, NEXCELOM SHALL BE DEEMED TO INCLUDE NEXCELOM BIOSCIENCE LLC, ITS SUBSIDIARIES AND AFFILIATES AND THE DIRECTORS, MANAGER, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND SUPPLIERS OF EACH OF THEM; AND “DAMAGES” SHALL BE DEEMED TO REFER COLLECTIVELY TO ALL INJURY, DAMAGE, LOSS OR EXPENSE INCURRED.
6. GENERAL TERMS
6.1 Amendment; Waiver. Nexcelom, in its sole discretion, may amend these Terms and Conditions at any time. No express or implied waiver by Nexcelom of any event of default hereunder shall in any way be, or be construed as, a waiver of any future or subsequent event of default.
6.2 Entire Agreement. Nexcelom and Buyer acknowledge that these Terms and Conditions, together with Nexcelom’s product list and corresponding price schedule and all Purchase Orders accepted by Nexcelom from time to time, set forth the complete, exclusive and integrated understanding of the parties which supersedes all proposals or prior or contemporaneous agreements, oral or written, and all other prior or contemporaneous communications between the parties relating to the purchase and sale of the products.
6.3 Force Majeure. Other than obligations to make payments of money, which obligations shall be absolute, neither party shall be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder or for failure to give the other party prior notice thereof when such delay or failure is due to the elements, acts of God, terrorist acts, delays in transportation, delays in delivery by vendors or other causes beyond that party’s reasonable control, other than causes arising on account of such party’s inadequate financial resources. If either party experiences an event of force majeure, the affected party shall notify the other party in writing of the nature of the delay and the anticipated length of the delay. The affected party shall take all commercially reasonable steps to formulate alternative means of performance to overcome the event of force majeure and shall keep the other party advised of such alternate performance and the process during the existence of the force majeure event. In the event of any such delay, the date or dates for delivery of the applicable products by Nexcelom shall be extended for a period equal to the time lost by reason of the delay.
6.4 Governing Law. These Terms and Conditions, the interpretation thereof, and any and all claims that may arise in connection with the products, will be governed by the laws of the Commonwealth of Massachusetts, exclusive of the choice of law rules thereof.
6.5 Severability. If any provision of these Terms and Conditions shall be held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Instead, these Terms and Conditions shall be construed as though they do not contain the particular invalid or unenforceable provision or provisions and the rights and obligations of the parties shall be construed and enforced accordingly.
7.1 Capitalized Terms. Capitalized terms used in these Terms and Conditions shall have the meaning set forth in these Terms and Conditions.
7.2 Additional Terms. In addition, as used in these Terms and Conditions, the following terms shall have the meaning set forth or as referenced below:
“Affiliate” shall mean with respect to any Party, any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Party. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract, or otherwise.
“Business Day” shall mean any day other than a Saturday, a Sunday, or a day on which banks in Massachusetts are authorized or obligated by Massachusetts state or United States federal law or executive order to remain closed.