1. Sale and Purchase
No Other Terms. Subject to the unqualified acceptance of these terms and conditions (“Terms”) by buyer (“Buyer”), Seller will use reasonable commercial efforts to sell to Buyer and Buyer will purchase from Seller the Products in the quantities specified in the table above (“Orders”) only for Buyer’s own internal use for research purposes only. “Products” are Seller’s products specified above.There shall be no force or effect to any different or additional terms of any purchase order, confirmation or similar form, even if signed by the parties before or after the date hereof. Provision of any Product to or on behalf of Buyer is conditioned on, and Buyer’s order or taking delivery of or otherwise accepting, using, or paying for any Product shall constitute, Buyer’s unqualified assent to and acceptance of these Terms to the exclusion of all other terms. If these Terms are considered an offer, acceptance is expressly limited to these Terms.
The Orders and these Terms may be referred to collectively as the “Agreement.”
2. Payment and Delivery
Terms. Buyer shall pay to Seller (i) with respect to Orders, the prices specified in the table above. All payments due hereunder to Seller shall be paid to Seller in US dollars not later than thirty (30) days following the date of the applicable invoice. In addition to the price, Buyer will pay all charges, including without limitation transportation charges, insurance premiums, and shall be responsible for all taxes (except Seller’s U.S. income taxes), duties, costs of compliance with export and import controls and regulations, and other governmental assessments. If Seller deems it self insecure it may require payment COD or by letter of credit.
3. Product Designations
Reverse Engineering. Buyer will not (and will not permit anyone to (a) remove any names, designations or notices from any Product or (b) reverse engineer or analyze any Product.
Seller warrants only to Buyer that the Products, when shipped to Buyer by Seller, will conform in all material respects to the applicable specifications sheets shipped with the Products. Such warranty does not apply to units that have been damaged, mishandled, mistreated or used or maintained or stored other than in conformity with such specifications and Seller’s instructions. EXCEPT FOR BODILY INJURY, BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE THE REPLACEMENT OF OR (AT SELLER’S OPTION OR IF REPLACEMENT IS IMPRACTICAL) REFUND FOR RETURNED NON-CONFORMING UNITS OF PRODUCT FOR WHICH FULL DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO SELLER WITHIN ONE (1) MONTH AFTER THE ORIGINAL NON-CONFORMING UNITS (BUT NOT REPLACEMENTS) ARE SHIPPED BY SELLER. EXCEPT FOR THE FOREGOING WARRANTIES, SELLER DOES NOT MAKE (AND HAS NOT AUTHORIZED ANYONE TO MAKE) ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. SELLER HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE.
5. Limited Liability
EXCEPT FOR BODILY INJURY, SELLER WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO SELLER HEREUNDER OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. SELLER SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL OR FOR ANY ALLOCATION OF PRODUCTS BETWEEN ITS CUSTOMERS IN THE EVENT OF A SHORTAGE.
BUYER WILL ISOLATE THE PRODUCTS FROM HUMANS, ANIMALS AND THE ENVIRONMENT BEFORE, DURING AND AFTER USE AND, NOTWITHSTANDING ANYTHING ELSE, WILL INDEMNIFY SELLER FROM ANY DAMAGES, LIABILITY, COST, EXPENSE OR ATTORNEY FEES IN CONNECTION WITH ANY ALLEGATION OF OR RELATING TO EXPOSURE OF HUMANS, ANIMALS OR THE ENVIRONMENT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY BODILY INJURY.
7. FCPA and Export Control
Buyer shall comply with the U.S. Foreign Corrupt Practices Act (regarding, among other things, payments to government officials) and all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Product (or any product incorporating such Product) in violation of any such restrictions, laws or regulations (including, without limitation, export or re-export to destinations prohibited either in Country Groups Q, S, W, Y or Z country specified in the then current Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations), or the OFAC regulations found at 31 C.F.R. 500 et seq.).
Seller may assign this Agreement in whole or in part. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. No changes or modifications or waivers are to be made to this Agreement unless evidenced in a writing (other than a purchase order, confirmation or similar form) that is conspicuously identified and labeled as an amendment and that is signed for and on behalf of both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys fees.