TERMS AND CONDITIONS
ERBI Biosystems, Inc. is identified herein as “Seller.” The entity named in any order made to Seller, or in the invoice or bill of sale to which these Terms and Conditions are attached, is identified herein as “Buyer.”
These Terms and Conditions shall apply to all sales as referenced in any order by Buyer to Seller or in or invoice or bill of sale by Seller to Buyer. Buyer’s placing of an order or receipt of any product from Seller shall be deemed to be full and complete acceptance of these Terms and Conditions. Any different or additional terms in any Buyer purchase order shall be automatically rejected and void.
3. SHIPPING TERMS
Shipping terms shall be Incoterms 2020, ExWorks, 325 New Boston Street, Woburn, MA 01801.
4. TRANSFER OF TITLE
Title shall pass to the Buyer only when products are paid for in full.
5. PAYMENT TERMS
NET30 from date of delivery except that in the event of a conflict between this payment term and the payment terms of any Distribution Agreement, the terms of the Distribution Agreement shall prevail. Payment for services shall be made within 30 days after invoicing for such services.
6. SELLER’S WARRANTY/BUYER’S REMEDIES
Seller warrants to Buyer, that for a duration of twelve (12) months from the delivery of theProducts to Buyer (the “Warranty Period”), the Products (excluding , software, accessories andconsumables) are and will (i) operate and perform substantially in conformance with the Seller’spublished specifications, if any, (ii) be free from defects in material and workmanship, and (iil)be of good quality and workmanship (“Seller’s Warranty”). Seller agrees during the WarrantyPeriod, to repair or replace, at Seller’s option, defective Products so as to cause the same tooperate in substantial conformance with said published specifications; provided that Buyer shall(a) promptly notify Seller in writing upon the discovery of any defect, which notice shall includethe product model and serial number (if applicable) and details of the warranty claim; and (b)after Seller’s review, Seller will provide Buyer with service data and/or a Return MaterialAuthorization (“RMA”), which may include biohazard decontamination procedures and otherproduct-specific handling instructions, then, if applicable, Buyer may return the defectiveProducts to Seller with all costs prepaid by Buyer. Replacement parts may be new orrefurbished, at the election of Seller. All replaced parts shall become the property of Seller.Shipment to Buyer of repaired or replacement Products shall be made in accordance with theDelivery provisions of this Agreement and the Seller’s Terms and Conditions of Sale.Consumables are expressly excluded from this warranty. THE WARRANTY SET FORTH HEREINCONSTITUTES THE SOLE AND EXCLUSIVE WARRANTY MADE BY SELLER WITH RESPECT TO THEPRODUCTS INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR APARTICULAR PURPOSE AND MERCHANTABILITY. This warranty shall not apply to any loss ordamage due to (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii)misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which theywere not designed, (v) use of the Products in a manner not described in the userdocumentation (vi) causes external to the Products such as, but not limited to, power failure orelectrical power surges, (vii) improper storage and handling of the Products or (ix) use of theProducts in combination with equipment or software not supplied by Seller. If Seller determinesthat Products for which Buyer has requested warranty services are not covered by the warrantyhereunder, Buyer shall pay or reimburse Seller for all costs of investigating and responding tosuch request at Seller’s then prevailing time and materials rates. If Seller provides repairservices or replacement parts that are not covered by this warranty, Buyer shall pay Sellertherefor at Seller’s then prevailing time and materials rates. ANY INSTALLATION,MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHERTAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THANSELLER WITHOUT SELLER’S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTSNOT SUPPLIED BY SELLER, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITHRESPECT TO THE AFFECTED PRODUCTS.
THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY IN THE EVENT OF A DEFECTIVE PRODUCT.
Seller warrants, for a period of ninety (90) days after the date of delivery, that the Software substantially conforms to its published specifications and that the media on which the Software resides will be free from defects in materials and workmanship under normal use. Seller does not warrant that the Software is error free or that Buyer will be able to operate the Software without problems or interruptions. Manufacturer also warrants, for a period of ninety (90) days after the date of delivery, that accessories and consumables substantially conform to their published specifications.
7. LIMITATION ON DAMAGES
IN NO EVENT WILL SELLER BE LIABLE FOR PUNITIVE, CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES RESULTING FROM LOSS OF USE OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF THE SELLER IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR FOR PUNITIVE, EXEMPLARY, OR MULTIPLE DAMAGES. IN NO EVENT SHALL SELLER’S MONETARY LIABILITY EXCEED THE AMOUNT PAID BY BUYER TO SELLER DURING THE 12 MONTHS PRIOR TO MAKING ANY CLAIM FOR DAMAGES.
8. BUYER’S INDEMNITY OBLIGATIONS
Buyer agrees to indemnify and hold Seller harmless, from and against all expenses, costs, liabilities, claims, actions, proceedings, damages, judgments and losses, of every kind or nature, including, but not limited to, reasonable attorney’s fees and court expenses and fees, incurred or suffered by the Seller as a result of Buyer’s misuse of any product provided by Seller or if Buyer uses the equipment in any way not intended, any way not allowed by Seller’s instructions.
9. INTELLECTUAL PROPERTY RIGHTS
All intellectual property of the Seller shall remain the property of the Seller. Buyer’s purchase of the Seller’s products shall not entitle the Buyer to any right, title, or interest in the Seller’s intellectual property. Buyer shall not, and will cause its employees, agents and customers not to modify, translate, reverse engineer, decompile, create derivative works of or copy the Products or any Intellectual Property Rights related thereto. Buyer shall not reverse engineer, disassemble, decompile or otherwise discover the Software or the Source Code. “Source Code” means computer software and code, in form other than object code form, including related programmer comments and annotations, help text, data and data structures, instructions and procedural, object-oriented and other code, which may be printed out or displayed in human readable form. “Software” shall include the source code, object code and related documentation.
10. CHOICE OF LAW AND VENUE
The validity, performance, construction and effect of these Terms and Conditions and of any order, invoice, or bill of sale, and all disputes arising out of or relating to the Terms and Conditions or any order, invoice, or bill of sale, or relating to any products purchased by Buyer from Seller, and all disputes of every kind and nature between the Seller and the Buyer, shall be governed by the laws of Massachusetts. Any dispute arising out of or related to the validity, performance, construction and effect of these Terms and Conditions or any Purchase Order, all disputes arising out of or relating to the Terms and Conditions or any order, invoice, or bill of sale or relating to any product purchased by Buyer form Seller, and all disputes of every kind and nature between the Seller and the Buyer shall be resolved exclusively in the courts sitting in the Commonwealth of Massachusetts, which may be either the Middlesex Superior Court or the United States District Court sitting in Boston. Buyer hereby consents to the exclusive jurisdiction and venue of such courts.
11. AMENDMENT OR MODIFICATION OF THESE TERMS AND CONDITIONS
Seller may amend or modify these Terms and Conditions at any time in its sole discretion, and any amended or modified Terms and Conditions shall apply to order placed after the date of the modification or amendment, provided that notice of the amendment or modification is provided to Buyer in the manner specified in these Terms and Conditions or in such other manner as Seller may designate in writing. The failure of Seller to enforce its rights under the Contract at any time, for any period of time, shall not be construed as a waiver of any such rights.
12. DEMONSTRATION EQUIPMENT
The Buyer’s use of any demonstration equipment shall also be subject to the terms of any separate agreement that they Seller and Buyer may enter into, or if no agreement is executed by the parties, the Buyer’s use of any demonstration equipment shall be subject to the terms of any terms and conditions of use that are provided to Buyer prior to or with the delivery of the demonstration equipment.
13. FORCE MAJEURE
Seller shall not be liable for any delay or other failure of performance due to causes beyond its reasonable control including without limitation, acts of God; acts of military or civil authorities; government regulations, orders, directives and / or restrictions; fire or other casualties; strikes; lockouts; weather; epidemic; war; riot; delays in transportation shortages; or inability to obtain necessary labor, materials, components, equipment, services, energy or utilities through Seller’s usual and regular sources at usual and regular prices. In any such event Seller may, with notice to Buyer, at any time and from time to time without further liability to Buyer, (a) postpone its performance under any accepted purchase order (b) make partial performance or cancel any accepted purchase order, or (c) allocate available quantities among its customers in any manner which Seller deems reasonable. Cancellation of any part of a purchase order shall not affect Seller’s right to payment for performance of any other obligation to Buyer.
Any notice required or allowed under these Terms and Conditions shall we in writing and shall be made by email or any form of mail requiring a signed receipt to the addresses below unless another email or mailing address unless a party notifies the other party in the manner required by this section of a different address for notices.
In case of Seller:
In case of Buyer: