The terms and conditions of sale listed here constitute the contract between Cygnus Technologies, LLC ("Seller") and Buyer (the "Terms & Conditions"). Orders submitted on Buyer's purchase order or other documents which contain terms or conditions modifying, adding to, or inconsistent with these Terms & Conditions (other than any formal written contract between Seller and Buyer, as further set forth below) shall not be binding and these Terms & Conditions shall be the sole terms and conditions. If these terms and conditions are not acceptable to the Buyer, Buyer must so notify Seller immediately, in writing. No variation of these Terms & Conditions will be binding upon Seller unless agreed to in writing and signed by an officer of Seller. If Seller and Buyer have heretofore entered into a formal written contract (e.g., a master supply and/or license agreement) containing specific terms covering the sale of such products, the terms and conditions of such formal written contract shall govern.
1. Changes. Orders arising hereunder may be changed or amended only by written agreement by both Seller and Buyer. Buyer may not cancel an order unless Seller expressly agrees to such cancellation. In such an event, Seller will advise Buyer of the total charge (“Charge") for such cancellation. Charge is defined as all costs plus a reasonable margin determined by Seller at its own discretion. Buyer hereby agrees to pay such Charges, including but not limited to storage and shipment costs, costs of producing non-standard materials, cost of purchasing nonreturnable materials, and any other cost resulting from cancellation of an order which is incurred by Seller or otherwise charged by Seller in accordance with its standard practices.
2. Warrantees/Returns. Seller warrants that its products shall conform in all material respects to the composition of such products as provided to Buyer as specified in product literature, Certificate of Analysis, or other analytical data. The risks as to the performance of these products are assumed by the Buyer, and Seller makes not representation or warranty that the products are fit for Buyer's intended use of the same. Seller shall not be responsible for any indirect, incidental, consequential, special, or punitive damages (including without limitation loss of use, lost profits, lost revenues, or losses associated with third-party claims) resulting from the use of these products. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER, AND HEREBY EXPRESSLY DISCLAIMS ANY, WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, DESIGN, SAFETY, USEFULNESS, NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES. Seller reserves the right to change product specifications/instructions without prior notification. Buyer's sole and exclusive remedy against Seller for any cause of action arising out of the sale or use of any product described herein shall be replacement of the product or refund of the purchase price paid for the product, at Seller's sole option. Immediately upon Buyer's receipt of any goods shipped hereunder, Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects, or damages and shall hold the goods for Seller's instructions regarding disposition. If Buyer fails to so notify Seller within 5 days after Buyer has received the goods, such goods shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer. Seller's warranties made in connection with this sale shall not be effective if Seller determines, in its sole discretion, that Buyer has misused the products in any manner, has failed to use the products in accordance with industry standards and practices, has failed to use the products in accordance with instructions, if any, furnished by Seller, has failed to store the products in accordance with industry standards or product literature, or has otherwise through its acts or omissions caused the products to be in non- conformance with the limited warranty granted hereunder. Products may not be returned for credit except with Seller's permission, and then only in strict compliance with Seller's return shipment instructions. Any returned items may be subject to a restocking fee.
3. Taxes. Any tax, duty, or any other fee of any nature whatsoever imposed by a government authority, on or measured by the transaction between Seller and Buyer (including without limitation sales, excise, use, or value-added taxes, but excluding taxes on Seller's income (which income taxes shall be the responsibility of Seller)) shall be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such charge, Buyer shall reimburse Seller. In lieu of such payment, Buyer may provide Seller at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, duty, or fee.
4. Price/Terms. All prices are subject to change without notice. Seller may request prepayment at its discretion. Acceptable forms of prepayment are check (US banks only), wire transfer and credit card (MasterCard, Visa and American Express) subject to limitations as may be communicated by Seller to Buyer from time to time. Buyers are required to submit a credit application before credit terms are extended. Terms are net 30 days from date of invoice, title and risk of loss transfer Ex Works (Incoterms 2010) Seller's location, freight prepaid and added unless shipped on Buyer's account (FedEx, UPS, DHL). Stenographic, clerical, and computer errors are subject to corrections. Unpaid amounts will accrue interest at a rate equal to the greater of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Seller's reasonable costs of collection. Seller reserves all other rights granted to a seller under the Uniform Commercial Code ("UCC") for Buyer's failure to pay for the Products or for any other breach by Buyer of these Terms. In addition to all other remedies available to Seller (which Seller does not waive by the exercise of any rights hereunder), Seller may suspend or cancel the delivery of any Products if Buyer fails to pay any amounts when due and the failure continues for five (5) days following Buyer's receipt of notice thereof. Buyer may not withhold payment of any amounts due and payable as a set- off of any claim or dispute with Seller, regardless of whether relating to Seller's breach, bankruptcy, or otherwise.
5. Shipping/Customs. Shipping costs are prepaid and added to the invoice, except where Seller agrees to use Buyer's account (in which case Buyer shall engage and pay its freight provider directly, subject to coordination with Seller's shipping department and Seller's approval of the provider and shipping method). Seller reserves the right to select the packaging and shipping method to ensure the integrity of the product. Seller shall not be held liable for delays in shipping or customs clearance. Separate line items may include charges for insulated boxes, special hazardous fee and/or handling fee which will be charged when required for shipment.
6. Delivery. Seller reserves the right to make delivery in installments. All such installments will be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of Buyer's obligations to accept remaining deliveries. Buyer shall place any claims concerning damage or loss in transit through the carrier, and Seller shall have no liability therefor.
7. Use/License. Products are for research use only, not for use in diagnostic or therapeutic procedures or for use in humans. Products are not for resale without express written permission of Seller. No license under any patent or other intellectual property right of Seller or its licensors is granted or implied by the purchase unless otherwise provided in writing.
8. Technical Assistance. At Buyer's request, Seller may, at its own discretion and subject to fees at Seller's standard rates, furnish technical assistance and information with respect to Seller's products. Seller makes no warranties of any kind, express or implied, with respect to technical assistance or information provided by Seller or Seller's personnel. Any suggestions by Seller regarding use, selection, application or suitability of the products shall not be deemed to be, or construed as, an implied or express warranty.
9. Disclaimer/Indemnification. THE PRODUCTS PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND (EXCEPT AS EXPRESSLY STATED IN THE FIRST SENTENCE OF SECTION 2 ABOVE), EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF DESIGN, MERCHANTABILITY, SAFETY, USEFULNESS, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES, IN ALL CASES WITH RESPECT THERETO. Buyer agrees to indemnify, defend and hold Seller, its affiliates, directors, officers, shareholders, members and employees harmless from and against any and all costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys' fee) resulting from any claim, suit, demand, action or proceeding brought by any third party against Seller alleging or arising from or related to (i) synthesis of a custom product, (ii) Buyer's use of a product manufactured by Seller, (iii) diversion or exportation of product contrary to U.S. Law or (iv) any breach of these Terms & Conditions by Buyer. This paragraph survives expiration or termination of Buyer's account or these Terms & Conditions.
10. Miscellaneous. Seller's failure to strictly enforce any term or condition or to exercise any right arising hereunder shall not constitute a waiver or relinquishment, to any extent, of Seller's right to strictly enforce remaining terms or conditions or exercise all terms or conditions on any future occasion. All rights and remedies under this order are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. Seller shall not be liable for delays or nonperformance to the extent caused by acts or threats of war or terrorism, fires, labor stoppages, natural disasters or unforeseen acts of nature, or other events beyond Seller's reasonable control.
11. Governing Law. These Terms & Conditions shall be construed and enforced in accordance with the laws of the State of California, without regard to its conflict of law principles. Solely to the extent the arbitration provisions in Section 12 are found to be unenforceable or the parties otherwise agree, the exclusive jurisdiction of, and venue for, any dispute arising from these Terms & Conditions shall be in the state and federal courts of San Mateo County, California, and Buyer hereby expressly and irrevocably consents to the jurisdiction of, and venue in, such courts and waives any objections to such jurisdiction and venue, including any claim of lack of personal jurisdiction or forum non conveniens.
12. Arbitration. Any controversy or claim arising out of or relating to these Terms & Conditions, the breach thereof, or any other matter arising between Seller and Buyer shall be settled by documents-only arbitration administered by the American Arbitration Association in accordance with the UNCITRAL Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Buyer hereby expressly and irrevocably consents to binding arbitration in accordance with the preceding sentence in connection with any such claim or controversy. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is specifically included in this agreement. The place of arbitration shall be Southport, North Carolina. The arbitrators shall award to the prevailing party, if any, as determined by the arbitrators, all of its costs and fees. "Costs and fees" mean all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out- of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys' fees.