OPEN BIOSYSTEMS, INC.,
A WHOLLY-OWNED SUBSIDIARY OF
THERMO FISHER SCIENTIFIC INC.
TERMS AND CONDITIONS OF SALE
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF SALE AND DISCLAIMERS CAREFULLY BEFORE COMPLETING YOUR PURCHASE. YOUR USE OF THIS WEBSITE TO PURCHASE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS.
BY CLICKING THE ACCEPTANCE BUTTON OR USING ANY PART OF THE PRODUCTS, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED OR YOU SHOULD PROMPTLY RETURN THE PACKAGE UNOPENED. OPEN BIOSYSTEMS WILL PROMPTLY CANCEL THIS TRANSACTION AND YOU MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE PRODUCTS.
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. GENERAL Open Biosystems, Inc. ("Seller") hereby offers for sale to the buyer ("Buyer") the products listed in the quotation, invoice, or any other product supplied by Seller to Buyer or listed on Seller’s website (the "Products") on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein (“Agreement”). This Agreement also governs, without limitation: (i) Products developed using the Buyer's non-proprietary or proprietary data and/or materials (including, but not limited to, protein or peptide sequences, recombinant proteins and any reagents provided by Buyer to Seller, for the purpose of Seller designing custom products ("Custom Products"). Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Buyer’s offer, this document will be construed as a counter offer and will not be effective as an acceptance of Buyer’s document. Buyer’s receipt of Products or Seller’s commencement of the services provided hereunder will constitute Buyer’s acceptance of this Agreement. This is the complete and exclusive statement of the contract between Seller and Buyer with respect to Buyer's purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein will be binding unless in writing and signed by Seller and Buyer. Seller's failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein.
2. PRICE, TAXES AND PAYMENT All prices published by Seller may be changed at any time without notice. All prices quoted by Seller or Seller’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller's price in effect at the time of shipment. Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must by paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction. In the event Seller is required to prepay any such tax or fee, Buyer will reimburse Seller promptly upon demand. Payment is due thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer will pay Seller interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Seller's rights hereunder. Seller reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to Seller, at any time that Seller believes in good faith that Buyer's financial condition does not justify the terms of payment specified. All payments will be made in U.S. Dollars.
3. SHIPMENT AND DELIVERY The Products will be shipped to the destination specified by Buyer, F.O.B. Seller's shipping point. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller's reasonable control. Notwithstanding the trade terms indicated above and subject to Seller's right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer upon delivery of possession of the Products by Seller to the carrier.
4. CANCELLATION, CHANGES OR RETURNS BY BUYER In the event of a delay due to any cause beyond Seller's reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Buyer's control may be placed in storage by Seller at Buyer's risk and expense and for Buyer's account. Orders cancelled after 5:00 pm ET of the day the order was placed may be canceled only with Seller's written consent and upon payment of Seller's cancellation charges. Orders in process may not be changed except with Seller's written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefor. Credit will not be allowed for Products returned without the prior written consent of Seller. Buyer will be responsible for inspecting all Products shipped hereunder, and Buyer will contact Seller at 888-412-2255 or other posted customer service number within ten (10) days following receipt if Buyer has received non-conforming or damaged Products. Seller may, in its sole discretion, authorize Product returns in appropriate circumstances, subject to such conditions as Seller may specify. Any such return will be subject to the express prior authorization of Seller. All sales and transfers of Products purchased hereunder will be final. Seller reserve the right to change the specifications of the Products at any time without notice.
5. WARRANTY Seller warrants solely to the Buyer that the Products materially conform to Seller's published specifications for such Products. Seller's warranty with respect to the Products is limited to the warranty provided in the preceding sentence and for a period not to exceed one (1) year from the date of manufacture. THE LIMITED WARRANTY PROVIDED HEREIN DOES NOT APPLY TO ANY DEFECT CAUSED BY FAILURE TO PROVIDE A SUITABLE STORAGE, USE OR OPERATING ENVIRONMENT; USE OF NON-RECOMMENDED REAGENTS OR BIOCHEMICALS; THE USE OF ANY PRODUCT FOR NON-RESEARCH PURPOSES OR A PURPOSE OR IN A MANNER OTHER THAN THAT FOR WHICH THEY WERE DESIGNED; MODIFICATIONS DONE BY BUYER; OR ANY OTHER ABUSE, MISUSE OR NEGLECT OF THE PRODUCTS BY BUYER. Any model or sample furnished to Buyer is merely illustrative of the general type and quality of goods and does not represent that any Product will conform to such model or sample. This warranty applies only to the Buyer and not to any third party. Buyer's exclusive and sole remedy under this warranty is: (i) replacement of the Product that failed to conform to the warranty above or (ii) at Seller's option a credit or refund for the Product in question.
EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
6. INDEMNIFICATION To the extent allowed by applicable law, and except where a Claim arises as a result of Seller's gross negligence or willful misconduct or that of its distributors, the Buyer shall indemnify, defend and hold harmless Seller, its officers, agents, employees and affiliates and those of its distributors ("Indemnified Party") for any claim, loss, damage, expense or other liability (including reasonable attorneys' fees and costs) ("Claim") which may be made against an Indemnified Party as a result of the Buyer's use of any Product or any result or data generated from such use. The Buyer’s indemnity obligations shall not apply to a Claim that the Buyer's use of a Product infringes the intellectual property rights of a third party if and to the extent that the Claim: (i) is based on the Product itself which was not modified, improved, enhanced or otherwise combined with any other product, compound or technology by the Buyer or its agent; (ii) has not arisen as a result of Buyer using the Product improperly or outside the scope of the licenses/rights provided herein; or (iii) is not based on any Target Gene and/or siRNA sequence and/or related information that has been selected and supplied by the Buyer to Seller. Buyer shall indemnify, defend and hold each Indemnified Party harmless from and against any and all Claims arising from or in connection with any claims (including patent and copyright infringement) made against any Indemnified Party alleged to have occurred as a result of Buyer's failure to provide any Required Consents to Seller for Custom Products.
7. LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, OR OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH WILL BE AS PROVIDED UNDER SECTION 5 ABOVE)) WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO SELLER WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER SELLER (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT.
8. EXPORT RESTRICTIONS Buyer acknowledges that each Product and any related software and technology, including technical information supplied by Seller or contained in documents (collectively “Items”), is subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer will comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Buyer will not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Buyer will, if requested by Seller, provide information on the end user and end use of any Item exported or to be exported by Buyer. Buyer will cooperate fully with Seller in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and will indemnify and hold Seller harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants, or agents.
9. ASSIGNMENT Buyer may not delegate any duties nor assign any rights or claims hereunder without Seller's prior written consent, and any such attempted delegation or assignment will be void.
10. GOVERNING LAW AND DISPUTE RESOLUTION The rights and obligations of the parties hereunder will be governed by and construed in accordance with the laws of the State of Seller’s manufacturing location, without reference to its choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in the county and state of Seller’s manufacturing location, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise. In the event of any legal proceeding between the Seller and Buyer relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arose. The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
11. SEVERABILITY AND WAIVER In the event that any one or more provisions contained herein will be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will remain in full force and effect, unless the revision materially changes the bargain. Seller's failure to enforce, or Seller's waiver of a breach of, any provision contained herein will not constitute a waiver of any other breach or of such provision.
12. USE OF PRODUCT The Product is intended for research only and is not to be used for any other purpose, including without limitation, unauthorized commercial uses, diagnostic uses, therapeutic uses, or any type of consumption by or application to humans. Seller will be designated as an author in any publications which incorporate use of, research on, or reference, the Products.
13. CONFIDENTIALITY Buyer agrees not to disclose or reveal to any third party, copy or reproduce or directly or indirectly use any of information identified by Seller as confidential ("Confidential Information") and not to use or exploit such Confidential Information for any purpose other than using the Product(s) without the prior written consent of Seller. Buyer will instruct its employees, contractors and agents as to the confidentiality and nondisclosure restrictions of these Terms and Conditions and be responsible for any breach of any obligation set forth herein that is caused by any of them. Nothing herein will restrict the use of information provided on Seller’s website, or otherwise provided by Seller, without restriction to the general public. This section will survive any expiration or termination of these Terms and Conditions.
14. NOTICES Any notice or communication required or permitted hereunder will be in writing and will be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.
