Terms And Conditions
Terms and Conditions of Sale - OBJECT PHARMA, Inc.
Controlling Provisions
Generally: This document including the provisions in Seller's quotation accompanying or referencing this document (the "Contract") constitutes an offer by Object Pharma, Inc. and/or its affiliates ("Seller") to provide the products and services described herein (the "Products") to the buyer to which this offer is addressed ("Buyer"). If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained in this Contract. Buyer's acceptance of this offer is limited to the terms, covenants and conditions contained in this offer. Seller hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless an authorized officer of Seller expressly assents to such terms in a signed writing. Such proposal of additional, different or varying terms by Buyer shall not operate as a rejection of Seller's offer, and Seller's offer shall be deemed accepted without such additional, different or varying terms. THIS CONTRACT CONSTITUTES THE FINAL EXPRESSION OF THE AGREEMENT BETWEEN SELLER AND BUYER REGARDING THE PRODUCTS AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THAT AGREEMENT. ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS WHICH ARE NOT CONTAINED IN THIS CONTRACT SHALL HAVE NO FORCE OR EFFECT UNLESS MADE IN WRITING AND SIGNED BY BUYER AND AN AUTHORIZED OFFICER OF SELLER. Seller's sales representatives are without authority to change, modify or alter this Contract. It is the express wish of the parties that this document and any related documents be drafted in English. Il est la volonté expresse des parties que cette document et tous les documents s'y rattachent soient rédigés en anglais.
Acceptance: Buyer shall be deemed to have made an unqualified acceptance of this offer and the Contract on the earliest of the following to occur: (a) Seller's receipt of a copy of this Contract signed by Buyer; (b) Buyer's payment of any amounts due under this Contract; (c) Buyer's delivery to Seller of any material to be furnished by Buyer; (d) Seller's delivery of the Products; (e) Buyer's failure to notify Seller to the contrary within ten days of receipt of this Contract, or (f) any other event constituting acceptance under applicable law.
Quotations: Written quotations are void unless accepted within 30 days from date of issue and are subject to earlier change upon notice. Other Seller publications are maintained as sources of general information and are not quotations or offers to sell.
Governing Law: This Contract and any disputes hereunder shall be governed by and construed according to the internal laws of the State of Wisconsin. NEITHER THIS CONTRACT NOR SALES HEREUNDER SHALL BE GOVERNED BY THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
Dispute Resolution: Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to this Contract or the matters contemplated herein shall be brought in a court within the Western District of Wisconsin, U.S.A. Buyer irrevocably consents to the exclusive jurisdiction and venue of said court and agrees that process may be served upon it in any manner authorized by the laws of the State of Wisconsin for such person and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction, venue or process.
Severability; Waiver: The invalidity of any provision or clause of this Contract shall not affect the validity of any other provision or clause hereof. Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Contract. The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term, covenant or condition.
Assignment: Buyer may not assign this Contract without Seller's prior written consent. Seller may assign this Contract in whole or in part, including without limitation to its affiliates, suppliers or subcontractors. Subject to the foregoing, this Contract shall inure to the benefit of, and be binding upon, the parties' successors and assigns.
Survival: The warranty limitations and damage limitations in sections [6 and 7], and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of the Contract for any reason.
2. Orders and Delivery
Orders: Buyer's orders or mutually agreed change orders shall be subject to all provisions of this Contract, whether or not the order or change order so states.
Delivery Terms: Seller shall deliver the Products EX WORKS Seller's facility in Madison, Wisconsin (the "Facility"). For purposes of this Contract, "EX WORKS" shall be construed in accordance with INCOTERMS 2010 of the International Chamber of Commerce, as amended. All risk of loss, damage or delay, and title to Products, shall pass from Seller to Buyer upon Seller's delivery of the Products at the Facility. Partial shipments shall be permitted.
Delivery Dates: All delivery dates are approximate. Delivery dates given by Seller are based on prompt receipt of all necessary information regarding the order. Seller will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by Seller to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery shall not be of the essence.
Claims: Claims for shortages or other errors must be made in writing to Seller within fourteen days after Seller's delivery. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.
3. Prices; Taxes
Prices: Seller may increase prices provided in any quote, effective on notice to Buyer, at any time prior to acceptance. Unless otherwise stated in Seller's quotation, prices are in U.S. Dollars, EX WORKS the Facility.
Taxes: Buyer shall be solely responsible for any value added tax, duty, customs agent or broker fees, inspection or testing fee, freight costs, insurance, consular fees or any other tax, fee or charge of any nature whatsoever, including interest, imposed on, in connection with or measured by any transaction between Seller and the Buyer, in addition to the prices quoted or invoiced.
4. Payment
Generally: Unless otherwise stated in Seller’s quotation or otherwise agreed by an authorized officer of Seller in a signed writing, payment terms are as follows:
If Buyer resides in the United States, payment terms are 100% of invoice amount due 30 days after Seller's delivery.
Seller's Rights: If Buyer does not pay Seller any amount due under this Contract or any other agreement when such amount is due or if Buyer defaults in the performance of this Contract, Seller may, without liability to Buyer and without prejudice to Seller's other lawful remedies (a) terminate Seller's obligations under this Contract; (b) declare immediately due and payable all Buyer's obligations to Seller; (c) change credit terms with respect to any further work or deliveries; (d) suspend or discontinue any further work or deliveries; and/or (e) repossess the Products. Buyer agrees to reimburse Seller for all costs and fees including, but not limited to attorneys' fees and repossession fees, incurred by Seller in collecting any sums owed by Buyer to Seller. Buyer agrees to pay a late payment charge in an amount equal to the lesser of 1.5% per month or the maximum amount allowable by law on all amounts not paid in full when due, payable on Seller's demand. Buyer shall not set off amounts due to Seller against claims against Seller.
5. Cancellations, Changes and Returns
Cancellations: All undelivered Products may be cancelled by Buyer only upon written approval of an authorized representative of Seller. Seller may condition authorization for cancellation of an order upon Buyer’s payment for costs and expenses associated with performance of work related to such order, as determined by Seller in its sole discretion.
Changes: Buyer may not change its order or any part thereof without the prior, written consent of an authorized representative of Seller. Seller reserves the right to change the price, terms of payment and delivery dates for any Products affected by any changes to which it consents.
Returns: No Products may be returned to Seller. Buyer shall dispose of any unused Products in accordance with applicable law.
6. Limited Warranty
Limited Warranty: Seller warrants to Buyer that its Products will conform to Seller's written specifications for a period of fourteen days from the date of Seller's delivery of Products at the Facility (the "Warranty Period").
LIMITATIONS ON WARRANTY: In addition to "Buyer's Obligations" below, the following limitations apply to this warranty. This limited warranty is nontransferable and extends only to the original purchaser acquiring the product directly from Seller. There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow Seller's instructions or improper installation, storage or maintenance.
Remedy and LIMITATIONS ON REMEDY: Seller's sole and exclusive obligation under this warranty (and Buyer's sole and exclusive remedy) shall be, upon prompt written notice by Buyer during the Warranty Period of any breach, to either, at Seller's option, replace without charge, F.O.B. Seller's Facility, any Product or part thereof found by Seller in its reasonable judgment to be covered by this warranty or credit Buyer for the purchase price paid for such Product. Notice of any warranty claim or request for warranty service should be sent to Seller at the following address: Metabiologics, Attn: Mike Goodnough, 505 S Rosa Rd Suite 18, Madison WI 53719
SELLER SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER REMEDIES, OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, REMEDIES, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR SELLER'S ACTS OR OMISSIONS OR OTHERWISE. Any assistance Seller provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty. Seller will not reimburse Buyer for any expenses incurred by Buyer in replacing any Products outside the terms of this limited warranty, except for those incurred with the prior written permission of an authorized representative of Seller.
LIMITATION ON DAMAGES: IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, OR FOR LOST PROFITS OR REVENUES DIRECTLY OR INDIRECTLY INCURRED, EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER'S AGGREGATE LIABILITY WITH RESPECT TO A PRODUCT AND THIS CONTRACT SHALL BE LIMITED TO THE MONIES PAID TO SELLER FOR THAT PRODUCT. These limitations apply notwithstanding any failure of the essential purpose of the above limited remedy.
Buyer's Obligations: Buyer must satisfy the following obligations in order to be eligible for coverage by this limited warranty. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and Buyer assumes all risk and liability whatsoever in connection therewith. Buyer agrees that Seller has no post-sale duty to warn Buyer or any other party about any matter or, if such duty exists, Seller satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post-sale duty to warn any employees, agents, contractors or third parties who may come into contact with the Products and indemnifies Seller against any Damages (as defined in section 8 below) in connection with such duty or failure to warn. Seller does not guaranty the Products as to suitability for Buyer's application or operating conditions. Nothing shall be construed to imply the nonexistence of any relevant patents or to constitute a permission, inducement or recommendation to practice any invention covered by any patent without authority from the patent owner. Buyer agrees to familiarize itself with and comply with all laws and regulations now or hereafter in effect and applicable to the purchase, transport, use, supply, storage, sale, offer for sale, lease and/or disposal of the Products ("Laws") including, without limitation, to the extent applicable, U.S. Centers for Disease Control regulations, the U.S. Foreign Corrupt Practices Act and all other antibribery laws, all U.S. antiboycott laws, and the U.S. Export Administration Act and all regulations thereunder. If Buyer or its affiliates, agents or representatives engages a freight forwarder or similar service provider, Buyer shall provide Seller with copies of freight forwarder (or similar) records regarding Product exports promptly upon request. Buyer shall promptly notify Seller in writing if Buyer receives notice of or otherwise has reason to believe that a violation of U.S. export law has occurred or is likely to occur. Buyer assumes all risk with respect to Product compliance with applicable Laws (including without limitation all Environmental Laws in any jurisdiction). Buyer acknowledges that certain Products may have restrictions on who can purchase, transport, use, supply, store, sell, offer for sale, lease and/or dispose of ("Actions") the Product and on how and where such Actions may take place. Buyer agrees to be responsible for determining who may take such Actions and how and where such Actions may take place after Seller's delivery hereunder, and further agrees to ensure that all employees, agents, and contractors comply with such requirements. "Environmental Laws" means all applicable federal, state and local laws including rules of common law, statutes, rules, regulations, codes, ordinances, binding determinations, orders, permits, licenses, injunctions, writs, decrees or rulings of any governmental authority, and other governmental restrictions and requirements relative to or that govern or purport to govern air quality, soil quality, water quality, sub-slab vapor and indoor air quality, wetlands, natural resources, solid waste, hazardous waste, hazardous or toxic substances, pollution or the protection of employee health and safety, public health, human health or the environment, including, but not limited to, the Comprehensive Environmental Response Compensation and Liability Act, the Hazardous Materials Transportation Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Emergency Planning and Community Right-to-Know Act, and the Toxic Substances Control Act, as each of these laws have been amended from time to time, and any analogous or related statutes and regulations, regulations of the U.S. Environmental Protection Agency, and regulations of any state department of natural resources, state environmental protection agency, and air quality management district or consortium now or at any time hereafter in effect.
7. DISCLAIMER OF OTHER WARRANTIES
SELLER AND BUYER AGREE THAT THE EXPRESS WARRANTIES IN THE PRECEDING SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE). SELLER HEREBY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS AND IMPLIED WARRANTIES. Any oral or written description of the Products or performance standards shall not be construed as an express warranty. Buyer acknowledges that many Products are inherently hazardous and may be harmful, causing bodily injury or death if not used in according to appropriate practices. The Buyer is responsible for ensuring that the Products are used safely, in a manner in accordance with all applicable laws and regulations, including without limitation rules and guidance issued by the US Centers for Disease Control, Department of Commerce and Environmental Protection Agency.
8. Indemnification
Indemnification: Buyer hereby releases and agrees to indemnify, defend and hold harmless Seller and its shareholders, directors, officers, employees, agents, successors, assigns, affiliates and suppliers (individually and collectively, "Seller's Indemnified Parties") from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, losses, suits, demands, fines, penalties, judgments, damages or expenses whatsoever, including, without limitation, attorneys' fees and costs ("Damages") incurred by or against Seller or any of Seller's Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (a) misrepresentation or breach of this Contract, or violation of any law, by Buyer or any of Buyer's shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns ("Buyer's Parties"), or (b) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer's Parties, or (c) actions, threatened actions, losses, damages or injuries to person or property (including death) related to or caused by Buyer's designs, approvals or instructions provided to Seller, Buyer’s use of the Products for any purposes other than those expressly consented to by Seller, or by Buyer's infringement of the patents or proprietary right of any other individual or entity, or due to improper application or use of the Products. Prior to settling any claim, Buyer will give Seller an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim without Seller's written consent. In the event of any recall affecting the Products, Seller shall have the right to control the recall process and Buyer shall fully cooperate with Seller in connection with the recall.
Buyer acknowledges that many Products are inherently hazardous and may be harmful, causing bodily injury or death if not used in according to appropriate practices. The Buyer is responsible for the safe use of the products, following all regulations of US government institutions, including the Centers for Disease Control, Department of Commerce and others.
9. Confidential Information; Product Data; Intellectual Property
Confidential Information: Buyer acknowledges that all Confidential Information (as defined below) which may be disclosed to it by Seller or its affiliates or suppliers shall at all times, both during and after expiration or termination of this Contract for any reason, remain the exclusive property of Seller or its affiliates or suppliers and that Buyer shall not acquire any proprietary interest whatsoever therein. "Confidential Information" means all knowledge and information disclosed by Seller or its affiliates or suppliers to Buyer orally or in writing, or acquired by Buyer through observation, regarding Seller's or its affiliates' or suppliers' products, technology, inventions, formulas, know-how, services, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, disclosed with the exception of such information which: (a) was already part of the public domain at the time of the disclosure by Seller or its affiliates or suppliers; (b) becomes part of the public domain through no fault of Buyer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); (c) was in Buyer's possession prior to the disclosure by Seller or its affiliates or suppliers and was not acquired, directly or indirectly, from Seller, its affiliates or suppliers or from a third party who was under a continuing obligation of confidence to Seller or its affiliates or suppliers; or (d) is received (after the disclosure by Seller or its affiliates or suppliers) by Buyer from a third party who did not require Buyer to hold it in confidence and did not acquire it directly or indirectly from Seller or its affiliates or suppliers under a continuing obligation of confidence. Except as necessary to perform its duties under this Contract, Buyer shall not use or disclose any of such Confidential Information, but shall protect it using at least the same degree of care given its own confidential information, but in no event less than a reasonable degree of care. Upon expiration or termination of this Contract for any reason, Buyer shall, within 15 days, surrender to Seller all tangible objects and all copies thereof relating to Confidential Information and all of Seller's or its affiliates' or suppliers' property. Nothing in this Contract shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides Seller, its affiliates or suppliers with broader protection than that provided herein.
Product Data: All Product data, formulation information, and specifications used in the completion of this order are and shall remain Seller's property. Buyer shall not copy, reproduce, distribute, publish or communicate to any third party such data without the prior, written permission of a properly authorized representative of Seller. Notwithstanding the foregoing, Buyer shall distribute product data on operation, safety and maintenance information to the end user.
Intellectual Property: All of Seller's Intellectual Property Rights are and shall remain Seller's sole property and Buyer agrees not to take or permit any action contradicting Seller's rights thereto. Except as specifically provided below, no licenses, express or implied, are provided to Seller's Intellectual Property Rights. "Intellectual Property Rights" include, without limitation, any copyright, patent, registered or unregistered design, logo, trademark, trade dress, trade name or other designation, translation of trade name into another language, technology, know–how, and any similar rights or applications for rights in any of the foregoing in any part of the world owned or used by Seller or any of its affiliates, and any goodwill relating thereto. Seller's rights under this section shall be enforceable by injunctive relief and/or a decree of specific performance. Such remedy is cumulative and nonexclusive. Buyer shall inform Seller promptly of any potential or actual infringement of any of Seller's or its affiliates' or suppliers' Intellectual Property and shall provide all assistance and information required by Seller, at Seller's expense, in connection with any such infringement.
10. Force Majeure
Seller shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, epidemic, pandemic, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Seller's available supply or any other cause beyond Seller's control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Seller may, at its option and without liability, prorate its deliveries, cancel all or any portion of the contract to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.