Transgenomic Product Sales Terms and Conditions
The terms and conditions provided herein, including any purchase order attached hereto, constitute the entire agreement (the “Agreement”) for the purchase, sale, and provision of Transgenomic products (“Products”), including, but not limited to kits and reagents (each, a “Consumable Product”), between Transgenomic, Inc. (“Transgenomic”) and the buyer of such Products (“Customer”), and supersede all previous communications, representations and agreements, whether oral or written between Transgenomic 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.
1. Payment: Payment terms are net thirty (30) days after the date of Transgenomic’s invoice for the relevant Products. Prices are payable in US Dollars 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 Transgenomic (collectively “Taxes”). Customer will pay any Taxes imposed on the sale or provision of the Products by Transgenomic to Customer under this Agreement. Customer will reimburse, indemnify, and hold harmless Transgenomic for all liabilities for Taxes. Overdue payments under this Agreement shall bear interest until paid at a rate that is the maximum legally allowed. Transgenomic may invoice Customer for, and Customer shall pay, all reasonable costs of collection for unpaid amounts, including without limitation, collection agency costs, reasonable attorneys’ fees, and court costs.
2. 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. Transgenomic will also be entitled to recover from Customer any out-of-pocket expenses Transgenomic 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.
3. Security Interest: Transgenomic reserves, until full payment has been received, a purchase money security interest in the Products. Upon request by Transgenomic, Customer agrees to execute any document appropriate or necessary to perfect the security interest of Transgenomic. Customer also authorizes Transgenomic to file this Agreement or any appropriate financing statement or chattel mortgage.
4. Shipment, Title and Delivery: Carriage terms are EXW (Ex-Works (Incoterms 2010)). Transgenomic shall, to the extent practicable, follow Customer’s specific shipment requests. If no shipper is specified by Customer, Transgenomic shall determine the best shipment method at its sole discretion. Title and risk of loss shall transfer to Customer at the point of uplift. Customer shall reimburse Transgenomic for all shipping costs incurred by Transgenomic. Customer shall provide whatever insurance against loss or damage it considers necessary once the Products leave Transgenomic.
5. Order Cancellation: Customer may not cancel any purchase order for Products without the express prior written consent of Transgenomic.
6. Rejection and Return of Goods: While all claims for defective shipping and for Products damaged in transit through no fault of Transgenomic must be made with the shipper, Transgenomic 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 Transgenomic of any defects within thirty (30) days of receipt of Products by Customer. If requested by Transgenomic, Customer must promptly return, at Customer’s own expense, a rejected Product to Transgenomic, 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 Transgenomic. Customer also agrees to inspect all shipments on receipt of order and notify Transgenomic of any missing items within seven (7) days of receipt of shipment, failure to do so will make any subsequent claims null and void.
7. Warranty Terms: Products are supplied for research use only, and subject to the terms and conditions of Transgenomic’s Limited Use License (wherein Customer is referred to as “Buyer”). Transgenomic warrants the Products are free from material defects in material and manufacture and conform to Transgenomic’s specifications at the time of shipment. Subject to verification by Transgenomic, if any Product fails to conform to the specifications or any defect in material or manufacture appears within 30 days from the date of shipment (each such period, the Product’s “Warranty Term”), Transgenomic’s entire liability and Customer’s exclusive remedy shall be, at Transgenomic’s sole discretion, the replacement of the defective Products, or a refund to Customer of the amounts paid for defective Product (less any shipping, handling, taxes, and insurance).
8. Limitations to Warranty: This warranty does not cover any damage to Products due to alteration, misuse, abuse, negligence, improper site selection, improper storage, or improper maintenance or operation by Customer or any others, or any other action or inactivity that is contrary to recommended instructions for the Products. 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 reagents. If you have questions regarding warranty coverage, please contact Transgenomic Customer Service.
THIS WARRANTY IN SECTION 7 IS MADE IN LIEU OF ALL OTHER WARRANTIES AND TRANSGENOMIC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. TRANSGENOMIC 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 TRANSGENOMIC 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.
9. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL TRANSGENOMIC OR ITS 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 Transgenomic relating to any order by Customer shall in no event exceed the total amount of the payments received by Transgenomic 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 Transgenomic’s information and belief, Transgenomic 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.
10. Indemnity by Customer: Customer will indemnify, defend, and hold harmless Transgenomic and its affiliates and 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.
11. 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.
12. 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 Transgenomic 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.
13. Assignment: Transgenomic 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.
14. Modifications; Waiver: Transgenomic 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 Transgenomic. Except as otherwise set forth in this Agreement, no failure by Transgenomic 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 Transgenomic hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. 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.
16. 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 effect 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.