“Confidential Information” means any Information that a reasonable person would conclude the disclosure of which was intended as confidential (based on marking or other circumstances around the disclosure), including, but not limited to, the terms of any applicable quotation or order, any Information related to the Goods and any Intellectual Property Rights relating to the Seller or the Buyer.
“Seller” shall mean BioMagnetic Solutions, a Delaware LLC, whose registered office is at 3058 Research Drive, State College, PA 16801, or where applicable any affiliated company within the BioMagnetic Solutions or Gamma Biosciences groups (together “Affiliates”).
“Goods” means any product sold or otherwise supplied by Seller to the Buyer and/or services that are incidental to the products or otherwise included in a quotation.
“Information” shall mean any and all scientific, technical, business or other information, including, but not limited to, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, patents, patent applications, copyrighted materials, marketing plans, customer names and other technical, financial or commercial information, practical experience, materials, including without limitation any and all information, data, documents, prototype, products, samples, equipment concerning the research, development, studies, specifications, formulae or the like and derivatives, and portions or copies thereof, whether patentable or not, and whether in oral, written, visual, graphic, electronic, machine recognizable, or other form or medium. .
“Intellectual Property Rights” means patents (including but not limited to divisionals, extensions, improvement patents, supplementary protection certificates, applications), copyrights (including moral rights) and related rights, rights in and to databases (including the right to prevent the extraction or reutilization of information from a database), trademark rights, trade and business names, domain names, trade secrets, rights on unpatented know-how including inventions and discoveries, registered or unregistered designs, software rights, topography rights and any other rights or forms of protection of a similar nature or having equivalent or similar effect, whether or not registered, including all applications for, and renewals or extensions of, such rights.
These Sales Terms and Conditions (“Terms and Conditions”) shall be deemed incorporated in any contract between a buyer of the Seller’s Goods (“Buyer”) and the Seller.
Unless otherwise agreed in writing, all orders received by the Seller shall be understood to be placed in accordance with these Terms and Conditions. The Buyer’s acceptance of shipment and/or payment for the Seller’s Goods constitutes acceptance of these Terms and Conditions. Any variations of these Terms and Conditions must be expressly accepted by Seller in writing. A contract shall be formed only upon written confirmation of an order by the Seller. The Seller reserves the right to engage a third party to process any or all orders, or part thereof.
Quotations, Orders and Prices:
Any quotations provided by the Seller shall not be binding with respect to price, quantity, delivery time or availability and are subject to change without notice. The Seller reserves the right to correct any errors or omissions in any quotation and to requote at prices prevailing at the date an order is placed by the Buyer. The Seller will hold quoted prices (or requoted prices, as the case may be) firm, provided an order is received by the Seller within twenty-eight (28) days from the date of the quotation.
All prices given are exclusive of value added tax, postage, freight, storage, packing and insurance charges, imports and custom duties unless otherwise stated. In the event of an increase in the prices of energy, raw materials or other materials necessary to manufacture the Goods ordered by Buyer occurring prior to the agreed delivery date, the Seller reserves the right to increase the price of the Goods ordered accordingly upon providing Buyer with reasonable notice of such increase.
In view of the cost of servicing and handling small orders, the Seller reserves the right to apply a minimum order value charge in the Seller’s absolute discretion.
No order can be accepted unless all necessary arrangements have been made by the Buyer to the satisfaction of the Seller regarding import and export licenses and further provision of payments.
Terms of Payment:
Prices are strictly net for payment thirty (30) days from the date of invoice issuance by the Seller, unless other payment terms have been agreed in writing by the Seller. Time of payment is of the essence. The right is always reserved by the Seller:
to request remittance with an order;
for new accounts to either request three (3) trade references and a banker’s reference or to issue pro-forma invoices; and
to charge interest on any balance from time to time outstanding and due to the Seller at 5% over J.P. Morgan Chase’s prime rate or the WSJ’s published prime rate + 5%.
Any method used by the Buyer to effect payment of invoices apart from cash (e.g. bills of exchange, letters of credit, etc.) shall be subject to the Seller’s prior written consent and shall not constitute discharge of the Buyer’s payment obligation until the Seller has received cleared funds as required by Section 4(iv). Any charges, fees, expenses, taxes, etc. in relation to the use of any method of effecting payment of invoices by the Buyer shall be borne by the Buyer. Any discount expenses or other charges or taxes in connection with bills of exchange which are incurred by the Seller after the due date of an invoice shall be for the Buyer’s account and shall be paid in accordance with Section 4(i).
Where the Seller has reason to doubt the Buyer’s solvency or creditworthiness and the Buyer is not prepared to make advance cash payment or provide the Seller with security as requested, the Seller shall have the right, at its absolute discretion, to reject any order without prejudice to any previously accrued rights.
Payment shall not be deemed to have been made until the Seller has received the amount due in full as cleared funds.
The Seller may in its absolute discretion apply any payments received from the Buyer against any outstanding invoices, interest on arrears and costs accrued, in such order as it sees fit.
The Buyer shall not have the right to withhold payments. The Buyer shall not be entitled to offset any amount owing by the Seller to the Buyer against payments due.
Where required, all Goods will be accompanied with the Seller’s standard Certificate of Analysis. If the Buyer requests any additional tests to be undertaken requiring a non-standard Certificate of Analysis, or Certificate of Conformity to be issued, this will be done at extra costs which shall be added to the price of the relevant Goods.
Unless otherwise stated, Goods will be shipped in one (1) single consignment. Such shipped Goods may however be delivered as separate consignments due to carrier restrictions. While every effort is made by the Seller to adhere to delivery dates, times quoted for delivery are to be treated as estimates only and the Seller shall not be liable for any loss incurred due to failure to deliver within such time. Whether a time for delivery is quoted or not, the time for delivery shall be extended by a reasonable period if delay in delivery is caused by anything beyond the Seller’s reasonable control. Any special delivery requirement must be notified to the Seller by the Buyer at the time of placing an order. The Seller reserves the right to charge the Buyer for delivery unless otherwise agreed and stated in writing by the Seller. Unless otherwise agreed in writing, all sales of Goods are made FCA (2020 Incoterms).
Damage and or Loss In Transit and Insurance:
The Seller accepts no responsibility for Goods shipped uninsured and shall not be obliged to claim in respect of any damage or loss where, at the Buyer’s request, insurance arrangements have been made other than under the Seller’s own open cover with its insurers. Insurance cost is for the account of the Buyer. Insurance can be arranged by the Seller by written request from the Buyer. The following claims procedure must be complied with by insured or their agents when cover is arranged with the Seller’s insurers:
Insured shall report claims immediately to the agent of the insurer shown on the insurance certificate.
Insured shall claim on the carrier, Port Authority or any negligent party for damages or omissions.
Insured shall apply immediately for a survey in the docks or airport premises by carrier’s representative if any loss or damage is apparent at the docks.
Insured shall not, under any circumstances, give a clear receipt for Goods when they are in doubtful conditions, except under written protest to that effect, which protest must be endorsed upon the receipt together with a statement to the effect that such receipt is being given without prejudice to any rights of the Seller, the Buyer or the insurers of either party and whether such rights can be expressed or implied, statutory or otherwise.
Insured shall give written notice to the carrier’s representative within three (3) days of Goods’ delivery if the loss or damage was not apparent at the time of delivery.
Insured shall send all correspondence with the carrier or other negligent parties when submitting a claim to the insurers.
No party shall be liable for the failure to carry out its obligations in the event that it is prevented from doing so by an event of force majeure which is, or the consequences of which are, beyond the reasonable control of the parties including, but not limited to, pandemic, epidemic; fire; strike, lockout, injunction or other labour disturbances, governmental intervention; war, riots, acts of civil or military authorities, explosion; weather, flood, acts of God or nature; inability to obtain on terms acceptable to the Seller or a shortage of fuel, power, raw materials, labour or transportation; accident; breakage of machinery; or disruption of normal supplier channels of distribution. In the event of force majeure, the obligations of the party affected by the force majeure shall be suspended for as long as the force majeure continues and to the extent which the force majeure affects the relevant party’s obligations hereunder.
Except where the nature of the event of force majeure shall prevent it from doing so, the party suffering force majeure shall notify the other party in writing forthwith after the occurrence of force majeure and shall in every instance, to the extent it is capable of doing so, use all reasonable efforts to remove or remedy such cause as quickly as possible.
If for reason of force majeure, supplies of the Goods or of the feedstock or raw material from which the Goods are directly or indirectly derived from any of the Seller’s then existing sources of supply are curtailed, restricted or cut off, the Seller shall have the option during such period of curtailment, restriction or cessation to allocate and apportion fairly among its customers (including the Seller’s Affiliates) such Goods in any manner as Seller in its absolute discretion deems appropriate.
Seller shall not be obliged to purchase or otherwise obtain alternative supplies of Goods, or the feedstock or raw material from which the Goods are, directly or indirectly, derived.
If, as a result of an event of force majeure, supply and/or delivery of the Goods is delayed by more than three (3) months, either party shall have the right to terminate these Terms and Conditions and the Seller shall not be liable for any loss, cost, expense or damage suffered by the Buyer resulting therefrom.
The Seller shall be under no obligation to accept amendment, cancellation or rescission of any order of any part thereof by the Buyer; but may nevertheless agree in writing to such amendment, cancellation or rescission at its absolute discretion and upon whatever terms and conditions it may choose to impose. The Seller shall be entitled to impose a cancellation fee of up to 100% of the relevant total order value should the Buyer postpone or cancel any order, or a portion thereof.
Notification of defects, Replacement and Refunds:
Upon receipt, the Buyer shall inspect the Goods, by analysis or otherwise, exercising such care as is customary or appropriate in the circumstances. Any claim concerning the quality or quantity of the Goods delivered must be submitted by the Buyer to the Seller in writing within three (3) days of receipt of the Goods by the Buyer, giving full details of the claim (including, but not limited to, samples and packing slips stating the relevant invoice number and date, and the marking on the packaging). When requested by the Seller, the Goods must be returned by the Buyer for inspection. Goods shall not be returned to the Seller without their prior written consent.
If the Buyer has notified the Seller of a defect in any Goods under Section 10(i) and the complaint proves justified, the Seller shall have the right to supply the Buyer with a replacement. If the Seller (a) waives its right to supply a replacement, (b) does not supply a replacement within a reasonable period, or (c) if the Goods supplied in replacement also prove defective, the Buyer shall have the option of requesting in writing a reduction in the purchase price or cancellation of the purchase of the defective Goods.
The Seller will only provide refunds against defective Goods if a replacement product cannot be provided. Defective Goods will, in the first instance, always be exchanged for a replacement.
Title to the Goods sold shall not pass to the Buyer until all sums due to the Seller from the Buyer (whether in respect of those Goods or otherwise) have been paid to the Seller in full. If the Buyer defaults in paying any such sum, the Seller shall be entitled to take such proceedings against the Buyer as it may be entitled without further notice. Risk of loss shall pass to Buyer upon delivery of the Goods to Buyer or any agent of Buyer. The Buyer shall not be entitled to encumber the Goods delivered with any right in favour of third parties until title has passed to the Buyer.
The Buyer shall be under obligation to provide, on behalf of the Seller, adequate storage of the Goods to which the Seller retains title, to service and repair them at Buyer’s expense, and to insure them at Buyer’s expense against loss and damage up to an extent which may reasonably be expected of a prudent business person. By accepting these Terms and Conditions the Buyer assigns in advance to the Seller any and all claims which may accrue to the Buyer under any insurance policies.
The Seller reserves the right to repossess and resell any or all of the Goods to which it has retained title. The Seller consents to the Buyer’s possession of the Goods and any right the Buyer may have to possession of the Goods shall in any event cease if the Buyer is in breach of any of these Terms and Conditions or any other contract between the Buyer and the Seller. Repossession of the Goods by the Seller shall not constitute termination of these Terms and Conditions unless the Seller has expressly declared so in writing.
The Buyer grants an irrevocable right and licence to the Seller and its employees and agents to enter the Buyer’s premises with or without vehicles during normal business hours for the purpose of inspecting and/or repossessing Goods to which it has retained title. This right and licence shall continue to subsist notwithstanding the termination for any reason of these Terms and Conditions and is without prejudice to any accrued rights of the Seller under these Terms and Conditions or otherwise.
Limitation of Liability:
NO WARRANTY OR GUARANTEE IS GIVEN AND NO REPRESENTATION IS MADE BY THE SELLER, WHETHER EXPRESS OR IMPLIED, AS TO THE USEFULNESS, SUFFICIENCY, MERCHANTABILITY, FITNESS OR PERFORMANCE FOR ANY PURPOSE WHATSOEVER OF THE GOODS SUPPLIED.
The Seller does not represent or warrant that the importation, use or sale of the Goods is free from infringement of any third party rights.
The Goods are sold, and service, information and advice rendered on the understanding that the Buyer is solely responsible for determining the suitability of the Goods for the purpose for which the Buyer intends to use them. Accordingly, the liability of the Seller for any loss, cost, expense or damage incurred by the Buyer as a result of third party claims or indirect or consequential loss or damage suffered by the Buyer and arising by reason of defects in the Goods or otherwise shall be limited to the invoice price of the Goods in respect of, or in relation to which, any loss, cost, expense or damage is claimed. The Seller shall, however, in no way be liable to the Buyer if said loss, cost, expense or damage is due to Buyer’s own negligence, error or omission, in whole or in part.
Health and Safety:
Goods should be handled and used only by trained personnel or under appropriate supervision. The application, use and processing of the Goods are beyond the Seller’s control. No responsibility or liability whatsoever is accepted by the Seller for any loss, cost, expense or damage arising out of or in relation to, the storage, use or handling of Goods supplied by the Seller however caused.
Use of Intellectual Property Rights:
The Seller shall not be liable for any loss or damage caused directly or indirectly by the infringement of any patent rights resulting from Buyer’s use of the Goods provided.
The Buyer shall not use the trademarks owned by or licensed to Seller or its Affiliates as, or as part of, any corporate, domain or business name, or as part of any promotional or marketing material including for the products manufactured from such Goods, unless agreed in writing in advance by Seller.
The Buyer shall immediately inform Seller of any actual or threatened infringement of any of the Seller’s or its Affiliate’s Intellectual Property Rights of which it becomes aware.
It is expressly understood that the transfer of the Goods and the disclosure of the Information is solely for the purpose specified in the relevant quotation or order. Nothing herein shall be construed as granting to the Buyer any rights or license under the Information, Intellectual Property Rights or other rights owned by the Seller concerning the Goods or the Information except as expressly permitted in writing.
Warranties and Representations:
The Buyer represents and warrants that it has obtained and shall obtain, maintain in force, and comply with any and all applicable licences, permits, approvals, consents, certificates, authorisations, and permissions (“Approvals”) required by all relevant governments, agencies or other authorities arising out of and in connection with its purchase of Goods from the Seller including in connection with transportation, resale or use of the Goods. Upon request by the Seller, the Buyer agrees to promptly furnish applicable Approvals to the Seller for inspection.
The Buyer represents and warrants that in the execution of and performance of its obligations under each order, the Buyer has complied, and shall at all times comply, with any and all applicable national and local laws, regulations, rules, decrees, demands, requirements, standards and international treaties, now or thereafter enacted, amended, consolidated or replaced, including, but not limited to, the national and local laws and regulations in relation to the purchase, sale, import, export, custom clearance, transportation, storage of the Goods and any such environmental protection laws and regulations pertaining to the Goods (“Laws”).
The Buyer further warrants that it shall abide by any service standards as communicated by Seller from time to time.
The Buyer shall indemnify, defend and hold the Seller and its Affiliates harmless against any and all claims, liabilities, expenses, loss, damages and costs which the Seller or its Affiliates may sustain or incur as a result of: (i) breach of these Terms and Conditions by the Buyer; (ii) breach of any contract or order by the Buyer; (iii) the Buyer’s non-compliance with the Laws, or failure to obtain, maintain in force or comply with applicable Approvals; and (iv) any claim, prosecution or suit brought against the Seller or its Affiliates by any third party including any government agency or other authority for any loss, injury or damage wholly or partly caused in any way by the Buyer’s purchase, use, transfer, sale or disposal of the Goods.
Foreign Trade Law Requirements:
The Seller is committed to compliance with international sanctions and export control regulations. The Buyer agrees that it will not directly or indirectly, export, re-export, transfer or divert or otherwise dispose of any Goods that it has purchased from the Seller to any country, individual, corporation, organisation, or entity to which such export is restricted or prohibited by any applicable jurisdiction. For example, economic sanctions and embargoes imposed by the European Union, the United Nations, US Departments of State, Treasury or Commerce, and other government authorities (such as embargoes imposed on specific countries, or economic sanctions imposed on individuals or companies for terrorism or money laundering offences) may prohibit the Buyer from taking the Seller’s Goods to other countries, even for the Buyer’s own personal use, and/or sending the Seller’s Goods (whether physically by mail or digitally via email or file-sharing) to particular individuals, corporations, organisations or entities. In addition, the Buyer agrees that it will not purchase any Goods from Seller if the Buyer is subject to such sanctions.
The Seller reserves the right to change or cancel any accepted order for Goods based on foreign trade law requirements, and to terminate the business relationship with the Buyer in case of non-compliance with applicable foreign trade law requirements.
The Seller reserves the right to claim damages in case of the Buyer’s non-compliance with applicable foreign trade law requirements.
Each party in receipt of Confidential Information, whether verbal or in writing or in any other form, of the other party shall not disclose such Confidential Information to third parties or use such Confidential Information for any purpose other than performance under these Terms and Conditions.
The recipient of Confidential Information shall limit access of such Confidential Information to those of its employees who need to know it for purposes of the recipient’s performance hereunder or otherwise in connection with the Buyer’s purchase of the Goods. The recipient’s employees shall be advised of the confidential nature of the information, and the recipient shall be responsible in case of breach of these Terms and Conditions by any such employee. A recipient of Confidential Information shall treat the Confidential Information with the same degree of care that it exercises in protecting its own confidential and/or proprietary information, and in any case not less than a reasonable degree of care.
The obligations arising from this Section 19 shall survive for ten (10) years after the expiration, termination or invalidation, for any reason, of any related agreement.
Confidentiality obligations shall not extend to Information that is in the public domain at the time of receipt, enters the public domain after receipt other than by the recipient’s breach of confidentiality, that is lawfully received from third parties, or to the extent the recipient is held to disclose information under the law or by governmental or judicial order.
For the avoidance of doubt, the non-public aspects of the Goods and associated Information and the terms of any related quotation or order shall be treated as Confidential Information by the Seller.
Relationship of Parties:
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the Seller and the Buyer and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
If any term or provision of these Terms and Conditions is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these Terms and Conditions.
No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the futur
These Terms and Conditions are personal to the Buyer and do not give any right to any third party. The Seller may assign its rights under these Terms and Conditions without notice to, or consent from, the Buyer, however the obligations of the parties set out in these Terms and Conditions shall pass to any permitted successor in title.
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Delaware, and any disputes which may arise in relation to these Terms and Conditions shall be referred to a single mutually agreed ICC arbitrator. The decision of such arbitrator shall be final and binding upon the parties in relation to the dispute and the arbitrator’s fees shall be borne on an equal basis by all parties involved.