|
|
General Terms & Conditions
- Acceptance Governing Provisions: In these General Terms
and Conditions (the "Conditions") "we," "us," and "our" means
Excellgen Inc. or the Excellgen affiliate that is processing this
order or purchase of goods , and "you" and "your" means the person, company
or other legal entity that orders or buys goods from us and in each case
their respective successors and/or assigns. We are shipping these goods
subject to these Conditions. You will be deemed to have assented to these
Conditions unless you return the goods to us within 5 days after your
receipt of the goods and this form. Our failure to object to provisions
contained in any purchase order or other form or document from you shall not
be construed as a waiver of these Conditions nor an acceptance of any such
provision. These Conditions, including all writings incorporated herein by
reference, any quotation issued to you by us, and those specific terms of a
purchase order or other document that are either consistent with these
Conditions or expressly agreed upon by us in writing, constitute the entire
contract between us (the "Contract"), and supersede all prior agreements and
understandings between us, whether written or oral, relating to the subject
matter hereof. In the event of a conflict, a quotation takes precedence over
these Conditions, and a written contract signed by both of us takes
precedence over either. If one or more of these Conditions are held to be
invalid, illegal, or unenforceable by a court of competent jurisdiction, the
remaining Conditions shall be unimpaired.
- Delivery: Unless specified differently in writing, all
sales are FCA our shipping point. We reserve the right to make delivery in
installments, all such installments to be separately invoiced and paid for
when due per invoice.
- Inspection and Returns: Upon your receipt of goods
shipped hereunder, you shall inspect the goods and notify our Customer
Services Department of any claims for shortages, defects or damages. If you
fail to so notify us within three days after you receive the goods, the
goods shall conclusively be deemed to conform to these Conditions and to
have been irrevocably accepted by you. Authorization for all product returns
must be approved by our Customer Services Department and a return
authorization number given to you prior to the return of goods. Not all
items will be authorized for return, due to temperature and packing
requirements. Items authorized for return must arrive at our facilities in a
state satisfactory for resale to be eligible for product credit. A
restocking charge of 25% or $25 (whichever is greater) shall be charged on
returns that are not the result of any error or fault of ours. Shipping
charges will not be credited. Goods may not be returned for credit after 20
days after your receipt of the goods.
- Credits and Refunds: At our discretion, we may issue a
product credit or refund for the product value and shipping charges. No
product credit shall be available for use if a past due balance is
outstanding on the account. Any product credit not used within six months of
the date of issue shall expire.
- Payments: Unless otherwise specified in a written
quotation we provide to you or written contract between the parties: goods
will be billed at the price in effect at the time shipment is made; such
prices shall be subject to change from time to time without notice; terms of
sale are net 30 days of date of invoice, in U.S. Dollars. If you default in
making any payment to us when due, we, at our option and without prejudice
to our other lawful remedies, may defer delivery or cancel the Contract. If
you provide a purchase order number which proves to be erroneous or invalid,
you agree to pay the invoice(s) upon receipt of a "proof of delivery (POD)"
and/or a proof of shipment "signed and executed bill of lading/airbill from
us.
- Taxes and Other Charges: Any use tax, sales tax, excise
tax, duty, inspection or testing fee, or any other tax, fee or charge
imposed by any governmental authority, on or measured by the transaction
between us shall be paid by you in addition to the prices quoted or
invoiced. If we are required to pay any such tax, fee or charge, you shall
reimburse us therefor or provide us at the time the order is submitted an
exemption certificate or other document acceptable to the authority imposing
the tax, fee or charge.
- Warranty: We warrant to you, our direct customer, that
our goods shall conform substantially to the description of such goods as
provided in our catalogues and literature accompanying the goods until their
respective expiration dates or, if no expiration date is provided, for 6
months from the date of your receipt of such goods. THIS WARRANTY IS
EXCLUSIVE, AND WE MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Our warranty shall not be effective if we determine, in our sole discretion,
that you have altered or misused the goods or have failed to use or store
them in accordance with instructions furnished by us. Our sole and exclusive
liability and your exclusive remedy with respect to goods proved to our
satisfaction (applying analytical methods reasonably selected by us) to be
defective or nonconforming shall be the replacement of such goods free of
charge, upon the return of such goods in accordance with our instructions,
although at our discretion we may provide a credit or refund in accordance
with Section 4 above. IN NO EVENT SHALL WE BE LIABLE UNDER ANY LEGAL THEORY
(INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT
OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST
PROFITS), EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES . If we
manufacture custom goods for you based on instructions, specifications, or
other directions you provide to us, we shall not be liable for the lack of
sufficiency, fitness for purpose or quality of the goods to the extent
attributable to such instructions, specifications, or other directions. We
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 our reasonable control.
- Compliance with Laws and Regulations: We certify that
to the best of our knowledge: our goods are produced in compliance with all
applicable federal, state, and local statutes, rules, regulations,
ordinances, and orders, including applicable requirements of the Fair Labor
Standards Act, as amended, the Occupational Safety and Health Act of 1970
and Executive Order 11246; we have a written Affirmative Action Program and
annually file Standard Form 100 (EEO-1); we do not discriminate against any
employee or prospective employee because of race, creed, color, national
origin, sex, age or handicap, nor permit discrimination in any form nor
maintain segregated facilities for our employees; we actively pursue
employment of minorities, females, handicapped, disabled veterans and
veterans of the Vietnam era; and we use our best efforts to award contracts
to and place purchase orders with minority business enterprises and with
labor surplus area concerns and small business concerns.
- Intellectual Property Rights
9.1 We warrant to you that the manufacture and sale by us of goods
manufactured by or for us without reliance upon instructions,
specifications, or other directions provided by you and delivered hereunder,
to our knowledge will not infringe the claims of any patent, trademark or
copyright ("Intellectual Property") of any third party. We do not warrant
that the manufacture and sale by us of goods manufactured in reliance upon
instructions, specifications, or other directions provided by you or your
use or resale of goods delivered hereunder will not infringe the claims of
any Intellectual Property of any third party.
9.2 If any claim is made against you or us for infringement of Intellectual
Property rights of any third party arising directly and solely from the
manufacture or sale of goods by us in circumstances in which the manufacture
of such goods was not based upon instructions, specifications, or other
directions provided by you, we shall assume the defense of any ensuing
litigation and conduct all negotiations for settlement of such claims and
will bear the costs of any payment made in settlement or resulting from an
award; provided that you shall give us notice in writing as early as is
reasonably practicable of any such claim being made or action threatened or
brought against you, shall make no admission of liability or take any other
action in connection with such matter and shall permit us to defend such
claim and shall (at our expense) give all reasonable information,
co-operation and assistance to us (including without limitation lending your
name to proceedings) in relation thereto. The foregoing describes our entire
liability to you and your exclusive remedies against us in connection with
claims made against you based on or resulting from such infringement of
Intellectual Property rights of third parties.
9.3 If any claim is made against us for infringement of Intellectual
Property rights of any third party as a result of (i) the manufacture or
sale of goods based upon instructions, specifications, or other directions
provided by you or (ii) your use or resale of goods purchased from us, you
shall indemnify us, defend us and hold us harmless from and against any and
all losses, damages and expenses (including reasonable attorneys’ fees and
other costs of defending any action) that we may incur as a result thereof.
You shall fully cooperate with us in any investigation relating to any such
claims and make available to us all related statements, reports and tests
available to you.
- Authorized Uses
10.1 Except as otherwise agreed in writing by our authorized representative,
the purchase of goods only conveys to you the non-transferable right for
only you to use the quantity of goods and components of goods purchased in
compliance with the applicable intended use statement, limited use statement
or limited label license, if any, in our catalogues or on the label or other
documentation accompanying the goods (all such statements or licenses being
incorporated herein by reference as if set forth herein in their entirety).
Unless otherwise authorized, no right to resell the goods, or any portion of
them, is conveyed hereunder.
10.2 Unless otherwise expressly indicated in our catalogues or on the label
or other documentation accompanying the goods, the goods are intended for
research use only and are not to be used for any other purposes including,
but not limited to, unauthorized commercial purposes, in vitro
diagnostic purposes, ex vivo or in vivo therapeutic
purposes, investigational use, in foods, drugs, devices or cosmetics of any
kind, or for consumption by or use in connection with or administration or
application to humans or animals. You acknowledge that the goods have not
been tested by or for us for safety or efficacy, unless expressly stated in
our catalogues or on the label or other documentation accompanying the
goods. Without limiting the foregoing restrictions, you warrant to us that
should you use or sell the goods for any use other than research, you shall
conduct all necessary tests, comply with all applicable regulatory
requirements, issue all appropriate warnings and information to subsequent
purchasers and/or users and be responsible for obtaining any required
Intellectual Property rights.
10.3 You represent and warrant to us that: you will properly test, use, and,
to the extent authorized, manufacture and market any goods purchased from us
and any final articles made from them in accordance with the practices of a
reasonable person who is an expert in the field, including, but not limited
to, a technically qualified individual (40 C.F.R. § 720.3(ee)), and in
strict compliance with all applicable national, state, provincial, and local
food, drug, device, and cosmetic and other relevant laws and regulations,
now and hereinafter enacted; and any final articles manufactured from the
goods shall not be adulterated or misbranded within the meaning of the
Federal Food, Drug and Cosmetic Act and shall not be articles which may not,
under Sections 404, 505, or 512 of the Act, be introduced into interstate
commerce.
10.4 You realize that, because our goods are intended primarily for research
purposes, they may not be on the Toxic Substances Control Act (TSCA)
inventory. You assume responsibility to ensure that the goods purchased from
us are approved for use under TSCA, if applicable. Consistent with your
agreement to comply with all TSCA R&D substance exemption requirements
applicable to the purchase, youagree and warrant that you will comply with
all requirements necessary to maintain the R&D exemption, including using
the R&D substance under the supervision of a technically qualified
individual, maintaining all necessary labeling, and providing all necessary
notifications. You also agree and warrant that you will use or sell (if
otherwise so authorized) the R&D substance exclusively for R&D purposes or
specified exempt commercial purposes. You specifically agree and warrant
that you will not sell or distribute the R&D substance to consumers.
10.5 You have the responsibility to conduct any research necessary to learn
the hazards involved for any of your uses of goods purchased from us and to
warn your customers, employees and any auxiliary personnel (such as freight
handlers, etc.) of any risks involved in using or handling the goods. You
agree to comply with instructions for use of the goods furnished by us, if
any, and not to misuse the goods. If the goods purchased from us are to be
repackaged, relabeled or used as starting materials or components of other
products, you will verify our assay of the goods, qualify the goods provided
by us for such applications, and comply with all governmental requirements
relating to labeling or providing other communications to customers. You
acknowledge that we provide Material Safety Data Sheets (MSDS) for our
products, and that they are available electronically on our web site at
www.excellgen.com, or in paper copy by calling our Customer Service Tech
line at 240-782-0005, and that you are willing and able to access
MSDS by these means. You also agree to inform your employees of the risks,
if any, involved in using or handling the goods and to train and equip them
to handle the goods safely.
10.6 You acknowledge that products received from us are subject to U.S.
export control laws and regulations. You represent and warrant to us that
you will not, directly or indirectly, (1) sell, export, reexport, transfer,
divert, or otherwise dispose of any products, software, or technology
(including products derived from or based on such technology) received from
us to any destination, entity, or person prohibited by the laws or
regulations of the United States, or (2) use the product for any use
prohibited by the laws or regulations of the United States and/or your local
jurisdiction, without obtaining prior authorization from the competent
government authorities as required by those laws and regulations
- Indemnity: You shall, at your own expense, indemnify
us, defend us and hold us harmless from and against any and all losses,
damages and expenses (including reasonable attorneys’ fees and other costs
of defending any action) that we may incur as a result of any claim of
negligence, breach of implied warranty, strict liability in tort, or other
theory of law, by you, your officers, agents or employees, your successors
and assigns, and your customers, whether direct or indirect, in connection
with the use or resale of any goods sold pursuant hereto either as a
standalone product or a component part or raw material of another product,
or by reason of your breach of or failure to perform any of your obligations
hereunder, except to the extent provided in Condition 9.2 above or caused by
a breach by us of the express warranty set forth in Condition 7 herein. You
shall notify us promptly of any incident involving goods sold pursuant
hereto resulting in personal injury or damage to property, and you shall
fully cooperate with us in the investigation of such incident and provide us
with all related statements, reports and tests available to you.
- Technical Assistance: Unless otherwise agreed, all
technical assistance and information we provide to you regarding the goods
will be provided gratis, and you assume sole responsibility for results
obtained in reliance thereon. We make no warranty regarding such technical
assistance or information.
- Miscellaneous: The Contract shall be governed by and
construed in accordance with the laws of the State of Maryland,
without giving effect to the principles of conflicts of laws. Our exercise
of any option, or failure to exercise any rights hereunder shall not
constitute a waiver of our rights to damages for breach of contract and
shall not constitute a waiver of any subsequent failure, delay, or breach by
you. We may assign our rights and/or obligations under the Contract to any
person in whole or in part.
|
240-782-0004
