These General Terms and Conditions of Sale ("Terms") shall govern all orders for and purchases of products and services from SciGene, including installation of equipment, unless other terms are specifically designated by SciGene to apply to a specific product or service, or SciGene and buyer have entered into a master purchase agreement or other written agreement that expressly provides that its terms supersede and replace these Terms with respect to the products or services covered by the master purchase or other agreement.
1. PRICE. The price for any product or service (hereinafter collectively "Product or Products") shall be the price stated in SciGene’s quotation to buyer for the Product ("SciGene’s Quotation") or, if SciGene has not issued a quotation, SciGene’s list price of the Product at the time SciGene receives buyer’s purchase order. SciGene’s Quotations are valid for 30 days from the quotation date unless otherwise stated in SciGene’s Quotation. If SciGene’s price is stated by reference to a price list, then the price shall be SciGene’s list price in the jurisdiction in which the Product is to be delivered or performed in effect at the time SciGene receives buyer’s purchase order. Prices stated are exclusive of all taxes, fees, licenses, duties, levies or other governmental assessments ("Taxes") and, unless otherwise stated in SciGene’s Quotation, shipping and handling charges, freight and insurance. All Taxes related to Product shall be paid by buyer (other than taxes assessed against SciGene’s net income), or in lieu thereof, buyer shall provide SciGene with a tax exemption certificate acceptable to the relevant taxing authorities. Taxes and other charges payable by buyer may be billed as separate items on SciGene’s invoice.
2. PAYMENT TERMS; COLLECTION COSTS; SECURITY TERMS. Payment terms are net 30 days from date of SciGene’s invoice. If SciGene deems buyer to be or to have become uncreditworthy, SciGene shall have the right to require alternative payment terms, including without limitation sight draft, letter of credit, or payment in advance. Payment for partial shipments shall be based on unit or prorated prices, and payment for partial installation(s) shall be based on percentage of completion of installation, as reasonably determined by SciGene. If payment is not received by the due date, SciGene may assess and buyer agrees to pay a late payment charge at the rate of 1% per month (12% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment. If SciGene retains a collection agency or attorney to collect unpaid amounts, SciGene may invoice buyer for, and buyer will pay, all reasonable costs of collection, including without limitation reasonable attorneys fees. Buyer hereby grants to SciGene and SciGene reserves a purchase money security interest in all tangible Product purchased from SciGene, and in any proceeds thereof, for all amounts owing to SciGene for or related to such Product. Upon request by SciGene, buyer shall sign any reasonable documents required for SciGene to perfect such security interest and, to the fullest extent permitted by law, buyer hereby expressly grants SciGene authority and a limited power of attorney to file financing statements and amendments thereto for and on behalf of buyer for such Product and any proceeds thereof. Payment in full of all amounts owed for and related to such Product shall release such security interest in the Product and proceeds.
3. CREDIT TERMS. SciGene may, at any time and in its sole discretion, limit or cancel the credit of buyer as to time and amount, suspend shipments, demand payment in cash before delivery of Product, or demand other assurances of buyer’s performance. If buyer fails to agree and comply with the different terms of payment demanded, or fails to give adequate assurances of performance, SciGene may, without prejudice to any other right or remedy SciGene may have: (i) by notice to buyer, treat such failure or refusal as a repudiation by buyer of that portion of buyer’s order not then fully performed, whereupon SciGene may cancel all further deliveries, and any amounts unpaid for non-cancelled Product shall immediately become due and payable; or (ii) make shipments under reservation of a security interest, whereby the buyer will execute any documents necessary to create and perfect this security, and demand payment against tender of title documents.
4. ACCEPTANCE OF ORDERS, DELIVERY, TITLE AND RISK OF LOSS, INSTALLATION. SciGene may accept or reject any buyer purchase order for Product in whole or in part. If a purchase order is accepted, SciGene will use reasonable efforts to ship tangible Product or perform services, including equipment installation if agreed to by SciGene, subject to the purchase order within a reasonable time after ordered, or, if a shipment, service commencement or installation date is indicated in SciGene’s Quotation or otherwise agreed upon in writing by an authorized representative of SciGene, on or before such date. SciGene may make delivery in installments, and each installment shall be deemed to be a separate sale. SciGene may render a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. Unless indicated otherwise in SciGene’s Quotation, title and risk of loss with respect to all Products except Products that are software or services, and risk of loss with respect to software, shall pass from SciGene to buyer upon transfer of possession of the Product to a common or other third party carrier at SciGene’s facility. If SciGene has undertaken to install a Product, it is buyer’s responsibility, at buyer’s cost, to have the installation site prepared and available for installation free of hazardous or unsafe conditions and, unless SciGene otherwise agrees, to move the Product, uncrated, from the buyer’s delivery dock or receiving location to the table top or other place of installation. Buyer shall not assign SciGene personnel to work in biosafety level 3 or level 4 laboratories without prior written notice to SciGene and SciGene’s consent.
5. CANCELLATION AND DEFERRAL. BUYER MAY NOT CANCEL ANY PURCHASE ORDER.
6. REJECTION AND RETURN OF PRODUCTS. Any claims for damaged, missing or defective Product must be reported in writing by buyer within 5 days from the date of buyer’s receipt of the Product. In addition, buyer must promptly return a rejected Product to SciGene, C.O.D., unused and in a condition no worse than that delivered to buyer and in the Product’s original containers and packing material, accompanied by a valid return materials authorization (RMA) number obtained from SciGene. SciGene may refuse any Product not timely rejected or sought to be returned without a valid RMA number. For any valid claim timely made, SciGene, at its option, may repair the Product or replace the Product with an identical or substantially similar Product. Shipping charges will not be credited. THESE ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR DAMAGED OR MISSING PRODUCT, AND, EXCEPT FOR EXPRESS WRITTEN WARRANTY RIGHTS, FOR DEFECTIVE PRODUCT. SciGene may require that buyer signs and delivers a properly completed certificate of decontamination prior to returning any Product.
7. LIMITED WARRANTY. SciGene makes only those warranties with respect to Product expressly identified as "warranties" and set forth in SciGene’s current operating manual or catalog, or in a specific written warranty included with and covering Product, if any. Warranties are made only to the buyer purchasing the Product directly from SciGene, are not transferable and do not extend to the benefit of any other person or entity, unless otherwise expressly stated in writing by SciGene. ANY PRODUCT NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. THE WARRANTIES IDENTIFIED IN THE FIRST SENTENCE OF THIS PARAGRAPH ARE SCIGENE'S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCT AND ARE IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, ALL OF WHICH OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANT LIABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE.
8. COMPLIANCE WITH LAWS, USE OF PRODUCT, VALIDATION. The parties understand and agree that (a) all Products are labeled "For Research Use Only. Not for use in diagnostic procedures."; (b) all Products have not received any governmental approval, clearance, or similar designation ("Product Approvals"), do not satisfy the requirements of any governmental body or other organization, and have not been validated for clinical or diagnostic use, for safety and effectiveness, or for any other specific use or application; and (c) the buyer is solely responsible for compliance with any and all applicable laws, and regulations, and governmental policies that pertain to its use of the Product including, but not limited to, obtaining any necessary Product Approvals. Products should be used by qualified professionals in strict accordance with applicable instructions, warnings and other information in user manuals and other Product documentation. The burden of proof for safe use and handling of Products sold by SciGene to the buyer is entirely the responsibility of the buyer.
9. USE RESTRICTIONS. The buyer is not licensed to, and agrees not to: (a) distribute any Product, directly or indirectly, to any third party for any purpose or use, except with prior written consent obtained from SciGene; (b) use or allow anyone to use an SciGene supplied Product contrary to applicable instructions; (c) decompile, deconstruct, disassemble or make other attempts to reverse engineer Product; The buyer acknowledges that failure to comply with any restriction of use set forth will (i) constitute a breach of these Terms, (ii) invalidate any warranty provided herein and any applicable service agreement, and (iii) may constitute a violation or infringement of SciGene’s and/or a third party’s intellectual property rights.
10. FORCE MAJEURE. SciGene shall not be liable for any delay or failure of performance, including without limitation failure to deliver or failure to install, where such delay or failure arises or results from any cause beyond SciGene’s reasonable control, including, but not limited to, flood, fire, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, plant breakdown, computer or other equipment failure, unusually severe weather, earthquake or other act of God, power loss or reduction, strike, lock-out, boycott or other labor disputes of any kind (whether relating to its own employees or others), embargo, governmental regulation or an inability or delay in obtaining materials. In the event of any such delay or failure of performance, SciGene shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances; and SciGene shall also have the right, to the extent necessary in SciGene’s reasonable judgment, to apportion Product then available for delivery fairly among its various customers in such manner as SciGene may consider equitable.
11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL SCIGENE BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR CAUSED BY PRODUCT, SCIGENE'S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF PRODUCT OR PERFORMANCE OF SERVICES, SCIGENE'S BREACH OF THESE TERMS, THE POSSESSION OR USE OF ANY PRODUCT, OR THE PERFORMANCE BY SCIGENE OF ANY SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT SCIGENE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, DOWNTIME, PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR LOSS OF REVENUE, PROFITS, GOODWILL, OR BUSINESS OR OTHER FINANCIAL LOSS.
12. SOLE TERMS; INCONSISTENCIES; ORDER OF PRECEDENCE. These Terms, together with SciGene’s Quotation, any applicable label license or patent statement or other written conditions of use, any other terms and conditions expressly agreed to in writing by an authorized representative of SciGene "(collectively, "SciGene’s Terms"), and buyer’s statement on its purchase order (if accepted by SciGene) of the name or identity of the Product(s) purchased, quantity, delivery date, bill to and ship to address and, if accurate, price (and only such information on buyer’s purchase order), constitute the complete, exclusive and entire agreement between SciGene and buyer with respect to purchases of Product (unless other terms and conditions are expressly designated to be applicable by SciGene in writing), and SciGene’s offer to sell Product is expressly limited to such terms. Such terms shall take precedence over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, and any of buyer’s additional or different terms and conditions, which are hereby rejected and shall be void. Buyer’s submission of a purchase order or other instrument for or regarding the purchase of Product, whether or not in response to an SciGene Quotation, shall be deemed acceptance of and agreement to SciGene’s Terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order (except the name or identity of products purchased, quantity, delivery date, bill to and ship to address and, if accurate, price) or other instrument, which are hereby deemed to be material alterations and notice of objection to which is hereby given, notwithstanding anything contained to the contrary in buyer’s purchase order or other instrument or elsewhere. Any acceptance by SciGene of any offer of buyer is expressly conditioned on buyer’s assent to and acceptance of SciGene’s Terms to the extent they are additional or different terms from those of buyer’s offer. Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on SciGene’s Quotation or other agreement signed by an authorized representative of SciGene, the terms appearing on SciGene’s Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms, and all other provisions of these Terms shall remain in full force and effect.
13. NO IMPLIED RIGHTS. Nothing in these Terms shall be deemed or construed (i) as a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise; (ii) to limit SciGene’s rights to enforce its patent or other intellectual property rights, including, without limitation, as to use of any Product beyond that granted under any patent or other intellectual property label license or statement applicable to the Product; (iii) as granting buyer any right to be supplied with any Product or component thereof beyond those ordered by buyer and supplied by SciGene in accordance with these Terms; or (iv) as a license or grant of any right to buyer to manufacture or to have manufactured any Product. .
14. CHOICE OF LAW. Any contract between SciGene and buyer relating to Product, including these Terms, and any disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of California, U.S.A., excluding both its choice of law provisions and the United Nations Convention on Contracts for the International Sale of Goods.
15. EXPORT CONTROLS. Buyer agrees that it will not export or transfer Product for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.
16. MISCELLANEOUS. No amendment of SciGene’s Quotation or these Terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both SciGene and buyer. SciGene’s failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these Terms for any other purpose. If any provision of these Terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect.
We last updated this policy on July 01, 2011.