ADS BIOTEC Inc. Instrument and Consumables Sales Terms and Conditions
ADS BIOTEC’s standard terms and conditions provided herein, including any purchase order attached hereto, constitute the entire agreement (the “Agreement”) for the purchase, sale, and provision of ADS BIOTEC products (“Products”), including, but not limited to instruments, consumables, modules, and parts (each, a “Consumable Product”), between ADS BIOTEC Inc. or its affiliate (including any subsidiary) making the sale to Customer (the particular ADS BIOTEC entity referred to herein as “ADS BIOTEC”) and the buyer of such Products (“Customer”), and supersede all previous communications, representations and agreements, whether oral or written between ADS BIOTEC and Customer with respect to the subject matter hereof. In the event of a conflict between the purchase order attached hereto and the terms and conditions provided herein, the terms and conditions provided herein shall control.
- Payment: Payment terms are net thirty (30) days after the date of ADS BIOTEC’s invoice for the relevant Products.
- Prices: Prices are payable in US Dollars, GB Pounds Sterling or Euros and are exclusive of freight, packaging for shipment, insurance, and sales, use, excise, import, export, value added, or other similar taxes or governmental charges, including any related penalties and interests however designated, with respect to the provision of the Products, other than taxes based on net income of ADS BIOTEC (collectively “Taxes”). Customer will pay any Taxes imposed on the sale or provision of the Products by ADS BIOTEC to Customer under this Agreement. Customer will reimburse, indemnify, and hold harmless ADS BIOTEC and its affiliates for all liabilities for Taxes.
- Shipment, Title and Delivery: Carriage terms are C.I.P. (Carriage and Insurance Paid, Incoterms 2010). ADS BIOTEC shall, to the extent practicable, follow Customer’s specific shipment requests. If no shipper is specified by Customer, ADS BIOTEC shall determine the best shipment method at its sole discretion. Title and risk of loss shall transfer to Customer upon delivery of the Products to the carrier by ADS BIOTEC. Customer shall reimburse ADS BIOTEC for all shipping costs incurred by ADS BIOTEC. Customer shall provide whatever insurance against loss or damage it considers necessary once the Products leave ADS BIOTEC.
- Late Fees: Customer will be charged late fees of 1.5% of the outstanding balance per month, or the maximum allowed by law, whichever is lower, if Customer fails to make any payments when due under this Agreement. ADS BIOTEC will also be entitled to recover from Customer any out-of-pocket expenses ADS BIOTEC incurs in collecting payments due. These expenses may include, without limitation, any bank charges for returned checks, collection agency fees, and any legal expenses, including court costs and attorney’s fees.
- Security Interest: ADS BIOTEC reserves a purchase money security interest in the Products until full payment has been received. Upon request by ADS BIOTEC, Customer agrees to execute any document appropriate or necessary to protect the security interest of ADS BIOTEC. Customer also authorizes ADS BIOTEC to file this Agreement, or any appropriate financing statement or chattel mortgage.
- Order Cancellation: Customer may not cancel any purchase order for Products without the express prior written consent of ADS BIOTEC.
- Rejection and Return of Goods: While all claims for defective shipping and for Products damaged in transit through no fault of ADS BIOTEC must be made with the shipper, ADS BIOTEC agrees to facilitate the processing of any such claims to the extent it is able to do so. Customer agrees to inspect any shipment of products and notify ADS BIOTEC of any defects within thirty (30) days of receipt of Products by Customer. If requested by ADS BIOTEC, Customer must promptly return, at Customer’s own expense, a rejected Product to ADS BIOTEC, C.O.D., unused and in condition as delivered to Customer and in the Product’s original containers and packing material, accompanied by a valid return authorization number obtained from ADS BIOTEC. Customer also agrees to inspect all shipments on receipt of order and notify ADS BIOTEC of any missing items within seven (7) days of receipt of shipment, failure to do so will make any subsequent claims null and void.
- Warranty Terms: Products are supplied for research use only, and subject to the terms and conditions of ADS BIOTEC’s Limited Use License, attached hereto as Exhibit A (wherein Customer is referred to as “Buyer”). ADS BIOTEC warrants the Products are free from material defects in material and manufacture and conform to ADS BIOTEC’s specifications at the time of shipment. Subject to verification by ADS BIOTEC, if any Product fails to conform to the specifications or any defect in material or manufacture appears: 1) for Products that are scientific instruments within one (1) year from the date of installation; and 2) for related Consumable Products within 30 days from the date of shipment (each such period, the Product’s “Warranty Term”), ADS BIOTEC’s entire liability and Customer’s exclusive remedy shall be, at ADS BIOTEC’s sole discretion, the repair or replacement of the defective Products, or a refund to Customer of the amounts paid for defective Product (less any shipping, handling, taxes, and insurance).
- Limitations to Warranty: Unless a separate service plan is purchased, all regularly scheduled maintenance and repairs during the Warranty Term shall be the responsibility of Customer. This warranty does not cover any damage to Products due to alteration, misuse, abuse, negligence, improper site selection, improper storage, and maintenance or operation by Customer or any others, or any other action or inactivity that is contrary to recommended instructions and design parameters for the Products. This warranty does not cover damage or defects resulting from repair or relocation of the Products by anyone other than a ADS BIOTEC representative. After the initial installation of the Products any post-installation realignment, readjustment, re-cleaning, or recalibration, unless due to defects in material or workmanship, are the responsibility of Customer. Certain items that are refurbished or otherwise reconditioned are also excluded from the terms of this warranty. This warranty does not cover any damage due to accidents, vandalism, fire, flood, other environmental factors or any other Force Majeure. The warranty further excludes items supplied by third party manufacturers, such as computers and related software. Customer is responsible for any modifications to such computers or software including, but not limited to: interfacing or networking; unauthorized hardware modifications; repartitioning or reformatting of the hard drive; installation or modification of additional or new hardware; and installation or reinstallation of new or existing computer operating systems or service packs. If you have questions regarding warranty coverage, please contact ADS BIOTEC Customer Service.
THIS WARRANTY IN SECTION 8 IS MADE IN LIEU OF ALL OTHER WARRANTIES AND ADS BIOTEC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. ADS BIOTEC MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY ADS BIOTEC OR ITS SUPPLIERS SHALL CREATE A WARRANTY, AND CUSTOMER IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THIS AGREEMENT.
- Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL ADS BIOTEC, ITS AFFILIATES, OR THEIR SUPPLIERS BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, GOODWILL OR BUSINESS) RESULTING FROM OR IN ANY WAY RELATED TO THE PRODUCTS. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER BASED ON OR RELATING TO THE PRODUCT OR THIS AGREEMENT.
These limitations apply regardless of whether such damages are sought based on breach of contract, negligence, strict liability in tort, or any other legal theory. The liability of ADS BIOTEC relating to any order by Customer shall in no event exceed the total amount of the payments received by ADS BIOTEC relating to such order. Without regard to any applicable statute of limitations, Customer agrees that any legal action related to any order must be commenced within ninety (90) days of the purchase date. By placing their order, Customers represent and warrant that they and their employees and agents shall comply with all applicable laws, ordinances, regulations and codes in handling, storage and use of Products
While information and data presented are accurate and reliable to the best of ADS BIOTEC’s information and belief, ADS BIOTEC does not guarantee the accuracy of any information and data, nor do we represent that reliance upon such information and data will ensure compliance with any applicable laws and regulations.
- Indemnity by Customer: Customer will indemnify, defend, and hold harmless ADS BIOTEC and its affiliates (including all of its subsidiaries) and their suppliers, and their officers, directors, employees, agents and contractors (“Indemnified Entities”) from and against all damages, liabilities, expenses, and fees arising out of or in connection with any third party claim or suit asserted against the Indemnified Entities based on Customer’s use or misuse of the Products, or breach of this Agreement by Customer; provided, however, that (a) Customer is promptly notified in writing of such claim or suit, (b) Customer shall have the sole control of the defense and/or settlement thereof, and (c) the Indemnified Entity furnishes to Customer, on request, all relevant information available to the Indemnified Entity and, at the request and expense of Customer, reasonably cooperates in such defense.
- Export Controls: Customer shall not export or transfer Products for re-export in violation of any United States laws or of the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of any such laws.
- Dispute Resolution and Governing Law: This Agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of California, U.S.A., without regard to provisions on the conflicts of laws. Before either party may initiate any legal action or proceeding or make a demand for arbitration, such party must notify the other party in writing of the dispute or controversy and make one or more of its executives available to meet with executives of the other party to attempt in good faith to resolve the dispute or controversy. If the dispute or controversy has not been resolved thirty (30) days after such notice is given, either party may initiate a legal action or proceeding or make a demand for arbitration in accordance with this Section, as applicable. Any dispute or controversy arising from or relating to this Agreement or the enforcement of any provision of this Agreement (collectively, a “Dispute”), must be arbitrated in San Francisco, California before a single arbitrator who is jointly selected and mutually approved by the parties or, if the parties are unable to agree on the selection of the arbitrator within fifteen (15) days of the demand for arbitration being served, who is appointed by Judicial Arbitration and Mediation Services (JAMS) in accordance with its rules. The arbitrator shall serve as a neutral, independent, and impartial arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (and in accordance with the expedited procedures in those rules), or, if applicable, in accordance with the JAMS International Arbitration Rules. The arbitrator will require the non-prevailing party to pay for the costs of arbitration, including reasonable attorney’s fees incurred by the prevailing party in connection with the arbitration. The results of the arbitration procedure will be considered confidential information of both parties. Any arbitration decision rendered will be final and binding, and judgment thereon may be entered in any court of competent jurisdiction. Notwithstanding the above, neither party will be required to arbitrate any dispute or controversy based on unauthorized use or disclosure of confidential information or infringement or misappropriation of intellectual property rights. Subject to the foregoing, Customer and ADS BIOTEC consent to the exclusive jurisdiction of, and venue in, the state and federal courts of San Francisco, California, U.S.A. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each party agrees that any proceeding to resolve or litigate any dispute hereunder, whether in arbitration or in court, will be conducted solely on an individual basis, and neither party will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which either party acts or proposes to act in a representative capacity. The parties further agree that no arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of all parties to such other arbitration or proceeding.
- Assignment: ADS BIOTEC may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of Customer. Any other attempted assignment of this Agreement is null and void. This Agreement will be binding upon and inure to the benefit of any permitted assigns and successors.
- Modifications; Waiver: ADS BIOTEC reserves the right to amend, modify or supplement these terms and conditions with respect to any future purchase of Products by Customer at any time and without notice to Customer. Any variance of these terms by Customer is not valid unless it is in writing and signed by an officer or other authorized representative of ADS BIOTEC. Except as otherwise set forth in this Agreement, no failure by ADS BIOTEC to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege by ADS BIOTEC hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege
- Force Majeure: Neither party shall be in default by reason of any failure or delay in performance of its obligations (other than Customer’s payment obligations hereunder) if such failure or delay arises out of causes beyond the control (whether caused directly or indirectly) of such party (“Force Majeure”). Such causes may include, but are not restricted to: Acts of God or of the public enemy; acts of government (including specifically but not exclusively any orders, rules, or regulations issued by any official or agency of any such government or changes in applicable laws or regulations) in either its sovereign or contractual capacity; riots; fires; earthquake; floods; epidemics; quarantine restrictions; embargoes; strikes; labor difficulties; unusually severe weather; shortages in labor, fuel, materials and supplies; denial of service attacks, failure of internet or wireless service, or any combination thereof.
- Severability: If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
ADS BIOTEC – LIMITED USE LICENSE
IMPORTANT – READ CAREFULLY BEFORE PURCHASING OR USING ANY PRODUCT SUPPLIED DIRECTLY OR INDIRECTLY BY ADS BIOTEC INC. OR ANY OF ITS AFFILIATES (INCLUDING ANY OF ITS SUBSIDIARIES) (“ADS BIOTEC”). THE PRODUCT MUST NOT BE USED BY THE PURCHASER OF THE PRODUCT (THE “BUYER”) IF THE TERMS AND CONDITIONS SET FORTH IN THIS LIMITED USE LICENSE ARE NOT AGREED TO.
LIMITED USE LICENSE
This product and its use are protected by Intellectual Property Rights owned or controlled by ADS BIOTEC. Purchase of the product conveys to Buyer only a limited, non-transferable License to use the product solely for internal, research purposes conducted by Buyer. This license specifically excludes any Non-Licensed Use. Buyer acknowledges that ADS BIOTEC is not obliged to transfer any additional know-how or technology to Buyer or to provide Buyer with any consulting services to implement or use the product.
The Buyer may transfer (but not resell) the product and/or information or materials made through the Buyer’s use of the product to a scientific collaborator or otherwise if such transfer is genuinely required for Buyer to use the product for internal research use, and such transfer is not for any Non-Licensed Use, and provided that such collaborator/recipient agrees in writing (a) not to transfer the product or any such materials to any third party, and (b) to use such transferred information and materials solely for the internal research purposes of Buyer and not for any Non-Licensed Use. Except as expressly permitted, the Buyer must not sell or otherwise transfer: (a) the product, (b) its components and/or derivatives, or (c) materials made using or incorporating the product, to a third party.
For information on purchasing a License to the product for purposes other than internal, research use, contact ADS BIOTEC at firstname.lastname@example.org.
ADS BIOTEC is entitled to terminate this Limited Use License with immediate effect if the Buyer breaches any of its terms, in which event Buyer must immediately destroy the product(s) subject to such breach and all information or materials made through the Buyer’s use of such product(s). The following disclaimer of warranties and indemnification from Buyer will survive any termination of this Limited Use License.
UNLESS EXPRESSLY SET FORTH IN A SEPARATE AGREEMENT BETWEEN ADS BIOTEC AND BUYER FOR THE SALE AND PURCHASE OF THE PRODUCT, ADS BIOTEC MAKES NO WARRANTIES OF ANY KIND WITH THE PRODUCT AND ANY INTELLECTUAL PROPERTY RIGHTS, ALL OF WHICH ARE PROVIDED AND LICENSED “AS IS”, “WITH ALL FAULTS”, AND WITH NO WARRANTY EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY WITHOUT ANY WARRANTY OF MERCHANTABILITY, ACCURACY, SUFFICIENCY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. ADS BIOTEC ASSUMES NO RESPONSIBILITY WHATSOEVER (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) WITH RESPECT TO THE USE BY THE BUYER OF THE PRODUCT OR ANY INTELLECTUAL PROPERTY RIGHTS OF ADS BIOTEC OR ANY THIRD PARTY. UNLESS EXPRESSLY SET FORTH IN A SEPARATE AGREEMENT BETWEEN ADS BIOTEC AND BUYER FOR THE SALE AND PURCHASE OF THE PRODUCT, BUYER SHALL INDEMNIFY AND HOLD ADS BIOTEC HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS, EXPENSES AND OTHER LIABILITIES WITH RESPECT TO THE PRODUCT AND THE USE THEREOF BY BUYER.
In this Limited Use License:
“Intellectual Property Rights” means and includes patent rights, copyrights, trademark and service mark rights, trade secret rights and rights in know-how and proprietary information, and other proprietary rights and intellectual property rights of any kind or nature anywhere in the world.
“Non-Licensed Use” means: (a) use of the product in manufacturing; (b) inclusion of the product as part of another product; (c) use of the product in connection with the provision of any service for compensation, including research services for third parties; (d) use of the product for ex vivo or in vivo therapeutic, diagnostics, forensic, prophylactic or other unauthorized commercial purpose; (e) use of the product in foods, drugs, devices or cosmetics of any kind, or for consumption by or use in connection with or administration or application to humans or animals; (f) resale, lease, license, or distribution of the product, or any components or derivatives thereof, whether or not for research use; (g) any modification of the product, and (h) any other use of the product other than internal research use.
If the Buyer does not agree with these terms, the Buyer can return the product at its own cost to the party that supplied to the product to the Buyer and receive a full refund (excluding shipping, tax and handling fees).
Doc ID 482175, rev 11/2016