Terms and Conditions. The sale of the products (the “Products”) described on any Quote, Proposal or Invoice provided by SciGene Corporation (“SciGene”) to the buyer indicated on the Quote, Proposal or Invoice (the “Buyer”) is governed by the following terms and conditions (the “Terms and Conditions”). Buyer acknowledges that SciGene’s sales representatives and other agents have no authority to make any representations not included herein.
Purchase Order. Buyer may order the Products by submitting a written purchase order to SciGene. All purchase orders are non-cancelable and nonrefundable. Any terms or conditions in any purchase order, invoice, acknowledgment, confirmation or other document provided by Buyer to SciGene that is different or in addition to those set forth in these Terms and Conditions are expressly rejected by SciGene and shall be of no effect, even if signed and returned.
Price. The prices for the Product set forth in the Quote, Proposal or Invoice are valid solely during the period set forth in the Quote, Proposal or Invoice. After the expiration of such period, SciGene shall have the right to change such prices at any time prior to receiving Buyer’s purchase order for Products. Prices do not include sales, excise, use or other taxes (other than taxes based on income) now in effect or hereafter levied by reason of this transaction. Buyer shall pay all such taxes.
Payment Terms. Any initial payment indicated on the Quotation or Proposal is payable by Buyer upon submitting a purchase order to SciGene. SciGene shall have no obligation to ship the Products to Buyer until SciGene receives from Buyer the initial payment indicated on the Quotation or Proposal. Any remaining amounts shall be invoiced by SciGene. Buyer shall pay the full amount of each such invoices within 30 days after receipt thereof. SciGene reserves the right to require alternative payment terms, including without limitation, sign draft, letter of credit or payment in advance. If payment is not received by the due date, a late payment charge of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, will be added to unpaid invoices from the due date thereof.
Credit. Shipment shall at all times be subject to the approval of SciGene’s credit department. SciGene may at any time and in its sole discretion limit or cancel the credit of Buyer as to time and amount, and, as a consequence, may demand payment in cash before delivery of any unfilled portion of this Terms and Conditions and may demand assurance of Buyer’s due performance.
Shipment. In the absence of specific shipping instructions, SciGene will ship the Products by such shipping method as SciGene determines. Shipping charges will be prepaid and added to the invoice, unless a carrier account is provided. When special or export packaging is required, the cost of the same, if not set forth on the invoice, will be separately invoiced. SciGene may make delivery in installments and may render a separate invoice for each installment. Buyer shall pay all invoices for shipping charges upon receipt. Each installment shall be deemed a separate sale. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept delivery of remaining installments. All shipments of the Products to Buyer shall be FOB Origin. Title to each shipment of the Products sold hereunder and risk of loss thereon shall pass to Buyer when SciGene delivers such shipment to a carrier.
Delivery. SciGene will use reasonable efforts to effect shipment on or before the date indicated; provided, however, that SciGene shall not be liable for any delay in performance due from any cause beyond the SciGene’s control. In the event of any such delay, SciGene shall (a) have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances, (b) have the right, to the extent necessary in SciGene’s reasonable judgment to apportion fairly among its customers the Products then available for delivery, and (c) use reasonable efforts to resume normal shipments upon the removal of any such cause beyond SciGene’s control.
Acceptance. Buyer shall give prompt written notice to SciGene of discrepancies between type and quantity of the Products ordered and delivered. Lacking such notice, Buyer shall be deemed to have accepted the Products. In the event of any discrepancy between type and quantity of Product ordered and Product delivered, Buyer shall return, within ten (10) business days of delivery of the Product to Buyer, such nonconforming Products to SciGene. SciGene shall pay for any reasonable shipping expenses incurred by Buyer to return any nonconforming Products to SciGene. SciGene shall replace the returned Product or issue refund or credit for the returned product, at SciGene’s sole discretion, as soon as reasonably practicable.
Limited Warranty and Disclaimer. SciGene warrants that as of the time of the delivery of the Products to a carrier, the Products (a) are of good quality and free from defects, whether patent or latent, in design, materials or workmanship, (b) are fit and sufficient for the use they are intended for, as such intended use is described in the accompanying Product documentation, and (c) have received all governmental approvals necessary for sale of such Product for the use it is intended for, as such
intended use is described in the accompanying Product documentation and as limited by the License. The foregoing warranty shall be void if the Product has been subjected to: (i) physical abuse, misuse, abnormal use, or use not consistent with the accompanying Product documentation or the License, (ii) modification by anyone other than SciGene or third parties designated by SciGene; (iii) tampering, unusual physical stress, negligence or accidents; or (iv) improper packaging of returns. OTHER THAN AS WARRANTED UNDER THIS SECTION, THE PRODUCTS ARE PROVIDED “AS IS.” SCIGENE MAKES NO OTHER WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
Limitation of Liability. IN NO EVENT SHALL SCIGENE BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, CONTINGENT, STATUTORY OR ANY OTHER SPECIAL DAMAGES. SCIGENE’S LIABILITY FOR DAMAGES ON ACCOUNT OF A CLAIMED DEFECT IN ANY PRODUCT DELIVERED BY SCIGENE SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT ON WHICH THE CLAIM IS BASED. SPECIFICALLY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCIGENE SHALL NOT BE RESPONSIBLE OR LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST PROFITS, OR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, CONTINGENT, STATUTORY OR ANY OTHER SPECIAL DAMAGES FOR ANY BREACH OF WARRANTY OR OTHER BREACH OF SCIGENE’S OBLIGATIONS UNDER THIS AGREEMENT. SCIGENE SHALL NOT BE LIABLE FOR DAMAGES RELATING TO ANY THIRD PARTY INSTRUMENT, EQUIPMENT, OR APPARATUS WITH WHICH THE PRODUCTS ARE USED.
Compliance with Laws; Precautions. Buyer shall use the Products in strict accordance with all applicable local, state and federal laws, regulations and guidelines, including without limitation all safety precautions accompanying the Products. Buyer understands that the Products, under certain circumstances, may have unpredictable and unknown biological and/or chemical properties. Buyer shall use prudence and reasonable care in the use, handling, storage, transportation, disposition, and containment of the Products. Buyer shall not use the Products for testing in or treatment of humans.
Export control. Buyer shall not export or re export, directly or indirectly, any Product to any destination prohibited or restricted by the applicable export control regulations, including the U.S. Export Administration Regulations and regulations of other competent authorities.
Restrictions. Except as expressly set forth, Buyer shall not, and shall not attempt of purport to: (a) modify, reverse engineer, decompile or disassemble the Products, or determine the structure of the Products; or (b) rent, lease, loan, sell, sublicense, distribute, transmit or otherwise transfer its rights to use the Products to any third party.
U.S. Government Agreements. If the Products are to be used in the performance of a U.S. Government agreement or subcontract and a U.S. Government agreement number shall appear on the Buyers order, those clauses of the applicable U.S. Government procurement regulation which are mandatorily required by Federal Statute to be included in U.S. Government subcontracts shall be incorporated herein by reference including, without limitation, the Fair Labor Standards Act of 1938, as amended.
Indemnification. Buyer shall defend, indemnify and hold harmless SciGene from and against all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) resulting from all claims, demands, actions and other proceedings by any third party arising from (a) the use, handling, storage, transportation, disposition, and containment of the Products by Buyer, (b) a breach of these Terms and Conditions by Buyer.
Choice of Law and Jurisdiction. These Terms and Conditions are governed by, and shall be construed in accordance with the laws of the State of California, without regard to the conflicts of law principles thereof, and shall not be governed by the United Nations Convention on Agreements for the International Sale of Goods. The parties hereby submit to the non-exclusive jurisdiction of, and venue in, the state and federal courts located in Santa Clara County, California, for the purposes of resolving any dispute arising from these Terms and Conditions.
Assignment. These Terms and Conditions and Buyer’s right hereunder may not be assigned by Buyer except with the prior written approval of SciGene.
Waiver. Waiver by SciGene of any provision of these Terms and Conditions or of any breach by Buyer of any provision of these Terms and Conditions shall not be deemed a waiver of future compliance with these Terms and Conditions, and such provision, as well as all other provisions of this Terms and Conditions, shall remain in full force and effect.
