TERMS AND CONDITIONS OF SALE TO END USERS AND DISTRIBUTORS OF AMERICANBIO, INC. (“AmericanBio”)
TERMS AND CONDITIONS OF SALE TO END USERS AND DISTRIBUTORS OF AMERICANBIO, INC.
Acceptance of Terms — By purchasing and accepting delivery of products supplied by AmericanBio, Inc. (“Products”), Buyer agrees to be bound by these Terms and Conditions of Sale (the “Terms and Conditions”). All orders must be accepted in writing by an authorized representative of AmericanBio, Inc. (hereinafter “AmericanBio”) to become effective. Terms or conditions contained in any order form or other document submitted by Buyer which are inconsistent with these Terms and Conditions are rejected, objected to and shall be deemed void and of no force or effect. Buyer’s receipt of Products or the services contemplated hereunder will be deemed Buyer’s acceptance of this Agreement. No change of the terms contained herein shall be binding unless in writing and signed by AmericanBio and Buyer and the failure of AmericanBio to object to any subsequent communication of terms from Buyer shall not constitute a waiver or modification of the terms set forth herein.
Changes — Once submitted, any change(s) to Buyer’s order(s) may be made only with advance written approval of AmericanBio and such changes may require different terms, including a change in the price and/or time of delivery. Once submitted, Buyer may not cancel any order unless cancellation is expressly approved by AmericanBio in writing, which approval may be contingent on Buyer’s payment of AmericanBio’s costs or other charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on AmericanBio by its suppliers, and any other costs resulting from cancellation. A verified bill of costs issued by an officer or other authorized representative of AmericanBio shall be conclusive as to the amount of such costs. AmericanBio reserves the right to cancel any order, in whole or in part, upon Buyer’s breach of these terms and conditions or Buyer’s bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading AmericanBio to reasonably question Buyer’s willingness or ability to perform.
Delivery, claims — All sales will be delivered Ex Works AmericanBio’s shipping point unless otherwise noted. If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of Products to the carrier at AmericanBio’s shipping point shall constitute delivery to Buyer and Buyer shall bear all risk of loss or damage in transit. The general method of shipment for each item is listed in AmericanBio’s product directory. However, AmericanBio reserves the right, in its sole discretion, to determine the exact method of shipment for any particular shipment. AmericanBio reserves the right to make delivery in installments, all such installments to 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. Immediately upon Buyer’s receipt of any Products shipped hereunder, Buyer shall inspect the same and shall notify AmericanBio in writing of any claims for observable shortages, defects or damages and shall hold Products for AmericanBio’s written instructions concerning disposition. To the extent there are shortages, defects or damages that are latent or not reasonably observable at the time of receipt, Buyer shall notify AmericanBio in writing upon Buyer’s first observation of such shortages, defects or damages. If Buyer fail to so notify AmericanBio within five days after the Products have been received by Buyer of observable shortages, defects or damages or within five days of Buyer’s first observation of latent or not reasonably observable shortages, defects or damages, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer.
Delays — Any specified delivery dates are estimates only and do not represent a promise by AmericanBio to deliver Products at a date certain. AmericanBio shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond AmericanBio’s reasonable control, including, without limitation, unsuccessful reactions, act(s) of Buyer, embargo or other governmental act, regulation or request affecting the conduct of AmericanBio’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices. If any such event continues for longer than 180 days, either party may terminate Buyer’s order and Buyer will pay AmericanBio for work performed prior to termination and all reasonable expenses incurred by AmericanBio as a result of termination. In the event of delays in delivery or performance caused by force majeure or by Buyer, the date of delivery or performance shall be extended by the period of time AmericanBio is actually delayed or as mutually agreed. If, for reasons other than the foregoing, AmericanBio should default or delay or not deliver Products, Buyer’s sole remedy against AmericanBio is an option to cancel Buyer purchase order, through prior written notice to AmericanBio.
Security Interest in Unsold Inventory (applicable to AmericanBio branded products only) — To secure Buyer’s obligation to pay AmericanBio for the purchase of any AmericanBio branded products, Buyer grant to AmericanBio a purchase money security interest in all such products purchased from AmericanBio, and in all proceeds thereof. Buyer agrees to execute UCC Financing Statements and such other documents as may be necessary from time to time and to otherwise assist AmericanBio in perfecting its security interest, if requested.
Allocation of Products — If AmericanBio is unable for any reason to supply the total demands for Products specified in Buyer’s order, AmericanBio may allocate its viable supply among any or all customers (including AmericanBio’s distributors) on such basis as AmericanBio may deem fair and practical, without liability for any failure of performance which may result therefrom.
Payment and Interest — Unless otherwise stated, payment in full shall be made within 30 days of invoice. AmericanBio reserves the right to require an advanced deposit of up to 100% of the purchase price at the time of order or any time prior to delivery as a condition of performance. If for any reason AmericanBio, in its sole and unfettered discretion, deems the ultimate collectability of the purchase price to be in doubt, AmericanBio may, without notice to Buyer, delay or postpone the delivery of the Products and may, at its option, change the terms of payment to payment in full or in part in advance, with respect to the entire undelivered balance of Products. In the event of default by Buyer in the payment of the purchase price or otherwise, AmericanBio, at its option, without prejudice to any other of AmericanBio’s lawful remedies, may defer delivery, cancel Buyer’s order and any other order of Buyer, or sell any undelivered products on hand for the account of Buyer and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and Buyer agrees to pay the balance then due to AmericanBio on demand. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof. Invoices remaining unpaid after their due date may be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law). Buyer must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.
Taxes and other charges — AmericanBio shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, with the sole exception of any sales taxes invoiced and collected from Buyer by AmericanBio. All other such charges (if any) must be paid by Buyer separately and in addition to the prices quoted or invoiced. In the event AmericanBio is required to pay any such tax, fee or charge, Buyer shall reimburse AmericanBio therefore; or, in lieu of such payment, Buyer shall provide AmericanBio at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
Pricing — Any quotation provided by AmericanBio is firm only if Buyer place a corresponding order within the time specified on the quote or, if no time period is mentioned, within 30 days. If no price has been specified or quoted, the price shall be the one in effect at the time of shipment. Buyer must request shipment of the entire quantity of Products ordered within 6 months from the date of order, otherwise, AmericanBio’s standard prices at time of shipment may apply, at AmericanBio’s option, to future deliveries. Prices exclude all taxes and duties assessed on the sale, delivery, or use of any ordered Products, all of which are the responsibility of the Buyer. Buyer agrees that all pricing and technical information that Seller provides to Buyer, that is not otherwise available to the general public, is confidential and proprietary to the Seller. Buyer agrees to keep such information confidential and not to disclose such information to any other party.
Price Changes (applicable to AmericanBio branded products only) — Prices may be changed at any time by AmericanBio without notice. Shipment will be made promptly even if prices have been nominally increased. Price changes will be automatically applied to Buyer’s invoice. Notwithstanding any price quotation or prices listed by AmericanBio, if at any time prior to delivery AmericanBio’s costs of materials have increased by 10% or more, then AmericanBio may cancel any accepted but undelivered orders or condition the continuance of any order on Buyer’s agreement to a corresponding increase in price.
Warranties — AmericanBio warrants that its products shall, at the time of delivery, substantially conform to the description of such products as provided to Buyer by AmericanBio through AmericanBio’s product directory, analytical data or other then-current literature. THIS WARRANTY IS EXCLUSIVE, AND AMERICANBIO MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. AmericanBio’s warranties made in connection with this sale shall not be effective if AmericanBio has determined, in its sole discretion, that Buyer have misused the Products in any manner, have failed to use the Products in accordance with industry standards and practices, or have failed to use the Products in accordance with instructions, if any, furnished by AmericanBio.
Limitation of Liability - AMERICANBIO’S SOLE AND EXCLUSIVE LIABILITY hereunder shall be limited directly to a breach of its performance obligations contained in the agreement AND BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO AMERICANBIO’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN AMERICANBIO’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH AMERICANBIO’S INSTRUCTIONS. AMERICANBIO SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND (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) RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF AMERICANBIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY AMERICANBIO’S GROSS NEGLIGENCE. THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS AND CONDITIONS. AMERICANBIO’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC PRODUCTS THAT GIVE RISE TO THE BREACH. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY. ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.
Moreover, AmericanBio shall bear no responsibility nor be liable to the Customer or any third party for damages related to the failure of any reagents to meet the expectations or requirements of any third party after delivery to the Customer if they had been manufactured to the specifications supplied by the Customer and successfully tested by AmericanBio before delivery to the Customer. The risk that any reagent that has been provided by AmericanBio to the customer in accordance with the Customer’s specifications is not suitable for its intended purpose by the Customer lies solely with the Customer.
- Buyer’s Use of Products — AmericanBio’s Products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, in AmericanBio’s product directory or in other literature furnished to Buyer, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes. Buyer acknowledge that the Products have not been tested by AmericanBio for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in AmericanBio’s literature furnished to Buyer. Buyer expressly represent and warrant to AmericanBio that Buyer will properly test, use, manufacture and market any Products purchased from AmericanBio and/or materials produced with Products purchased from AmericanBio in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. Buyer further warrants to AmericanBio that any material produced with Products from AmericanBio shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.
Buyer realizes that, since AmericanBio’s Products are, unless otherwise stated, intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. Buyer assumes responsibility to assure that the Products purchased from AmericanBio are approved for use under TSCA, if applicable. Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using Products purchased from AmericanBio. Buyer also assumes the duty to warn Buyer’s employees, those associated with Buyer and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products. Buyer agrees to comply with instructions, if any, furnished by AmericanBio relating to the use of the Products and not misuse the Products in any manner. If the Products purchased from AmericanBio are to be repackaged, relabeled or used as starting material or components of other products, Buyer agrees that Buyer will verify AmericanBio’s assay of the Products. No Products purchased from AmericanBio shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
Resale, Distribution and Export Prohibited (applicable to AmericanBio branded products only) — Buyer warrants to AmericanBio that Buyer will use the Products directly and as permitted by Section 12 above, and Buyer further agrees that the Products may not be marketed, distributed, resold or exported by Buyer for any purpose.
Patent disclaimer — AmericanBio does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
Returns — Products may not be returned for credit except with AmericanBio’s permission, and then only in strict compliance with AmericanBio’s return shipment instructions. Buyer must obtain advance written authorization from AmericanBio and a written return authorization document in the form then in use by AmericanBio, prior to returning any Products. Certain items and quantities may not be returned for credit or under any circumstances. These items include, but are not limited to: diagnostic reagents, refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders; products missing labels, parts, or instruction manuals; and books, computer software and equipment removed from their original packaging. Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.
Technical Assistance (applicable to AmericanBio branded products only) — At Buyer’s request, AmericanBio may, in AmericanBio’s sole and absolute discretion, furnish technical assistance and information with respect to AmericanBio’s Products. AMERICANBIO MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY AMERICANBIO OR ITS PERSONNEL. ANY SUGGESTIONS BY AMERICANBIO REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF AMERICANBIO.
CONFIDENTIAL INFORMATION — The parties agree that nothing in this agreement is intended to supercede or in any way change the obligations of the Parties set forth in any prior Confidential Disclosure & Secrecy Agreements or other Non Disclosure Agreements entered into by the Parties. To the extent not covered by any such agreements, neither Party will use information contained in this Agreement, exchanged in prior negotiations, proprietary to the other Party, reasonably expected to be held in confidence or any tender process for any purpose not contemplated by this Agreement. Each Party must keep this information confidential and must ensure that its employees, agents and subcontractors who need such access in order to perform their duties, also receive this information under obligations of confidentiality and keep this information confidential. During the time period from and after the Commencement Date until the 7th anniversary of the expiration or termination of this agreement, each Party shall keep this information confidential and shall not use it for any purpose other than the performance of such Party’s obligations under this Agreement.
Miscellaneous — AmericanBio’s failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to Buyer’s order shall not constitute a waiver of AmericanBio’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies are cumulative and are in addition to any other rights and remedies AmericanBio may have at law or in equity. Any waiver of a default by Buyer shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any of these terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The section headings herein are for convenience only; they form no part of the Terms and Conditions and shall not affect their interpretation. These Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
Governing Law, Disputes — All disputes allegedly arising from the legality, interpretation, application, or performance of Buyer’s order, the Products or any of these Terms and Conditions shall be governed exclusively by the laws of the Commonwealth of Massachusetts including its conflict of laws principles. Each party agrees that any dispute arising between them which results in either party instituting court proceedings shall be litigated either in the United States District Court for the District of Massachusetts, if a basis for federal court jurisdiction is present, or in the Middlesex County Superior Court. Buyer waives any objections or defenses it may have based upon an inconvenient forum. Notwithstanding the foregoing, nothing in this section shall prevent AmericanBio from bringing a claim in any court having jurisdiction over Buyer or Buyer’s end users to enjoin infringement of AmericanBio’s trademark, patent or other intellectual property rights, or to prevent irreparable harm to AmericanBio. Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arises. The parties agree to waive, to the fullest extent permitted by law, any and all rights to a trial by jury in connection with any dispute.
Indemnity and Insurance — Buyer shall defend, indemnify and hold harmless AmericanBio, its directors, shareholders, divisions, affiliates, subsidiaries, franchisees, successors in interest, agents, employees and representatives harmless from and against any and all claims, actions, proceedings, liability, damages, losses, costs or expenses (including attorney’s fees, expert fees and/or Court costs) alleged to arise out of or result from or in connection with (1) the negligence, recklessness or willful misconduct of Buyer , its employees, its agents, its representatives its end users or its contractors, (2) the use of the Product in an a manner not intended or as designed, (3) any act or failure to act by Buyer its employees, its agents, its representatives, its end users or its contractors that infringes on the intellectual property or other rights of a third person, including, but not limited to, any such claims arising from Buyer’s or its end user’s use of the products that are the subject of this agreement, (2) cause any injury to any person or persons or damage to tangible or intangible property, (4) the modification of the Product after delivery by AmericanBio or (5) breach the provisions and representations contained in the Terms and Conditions.
Buyer shall maintain: workers’ compensation insurance with statutory limits; (ii) employers’ liability insurance for bodily injury with limits of at least $1,000,000 per occurrence or as required by law; and (iii) comprehensive general liability insurance for death, bodily injury and property damage, including products liability coverage, with limits of at least $5,000,000 per occurrence or as required by law. Upon AmericanBio’s request, Buyer will provide AmericanBio with certificates of insurance evidencing such coverage naming AmericanBio as an additional insured.
Property Rights – Buyer has no ownership rights in any AmericanBio branded Products, which are owned by AmericanBio, and are protected under copyright, trademark and other intellectual property laws and other applicable law. Buyer receives no copyright or any other intellectual property right in or to any AmericanBio branded Products, except as provided above. Buyer further agrees that any information relating to the content of any AmericanBio branded Products is confidential and proprietary to AmericanBio, and that Buyer will refrain from disclosing such information to any third party.
Trademarks – The following are trademarks of AmericanBio: Acrylease, AcrylEase Plus, Agarose GPG/LE, Agarose GPG/ME, Agarose GPG/LMP, Agarose Resolute GPG, Agarose Suprasieve GPG, Agarose Suprasieve 3:1 GPG, Bioclean PF, BioPlus, Compass, Compass DNA Purification Kit, Compass Mini-Plasmid Prep Kit, Eradicase, Ethidimax, Formamide DI, Omniblok, Safescint, Safescint Ultra Gold, Super IPA, Super Glycerol, RNA Ethanol 70%, Super Methanol, BioNeutral, Protein Gel Mix, Alcohol for DNA/RNA, AmericanBio.
Authority — Each party represents and warrants that it has taken all requisite action to approve execution, delivery and performance of this Agreement and that this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms.
Construction — This Agreement will not be construed in favor or against either party by reason of the authorship of any provisions hereof. In the event that any one or more provisions contained herein shall 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 shall remain in full force and effect.
Entire Agreement — This Agreement, as to its subject matter, exclusively and completely states the rights, duties and obligations of the parties and supercedes all prior and contemporaneous representations, letters, proposals, discussions and understandings by or between the parties. This Agreement may only be amended in writing and signed by both parties. The parties, by their representatives signing below, agree with the terms of this Agreement.