Effective June 28, 2023
1. Agreement Terms
General Terms. These terms and conditions (“Terms”), and/or any quotation constitute an agreement (“Agreement”) between you, the customer (“Customer”), and BioMagnetic Solutions LLC (“BioMagnetic Solutions”). These Terms will apply unless an order is subject to a valid, written, executed agreement between the Customer and BioMagnetic Solutions or any of the BioMagnetic Solutions group of companies, in which case such an agreement applies. In this case the Customer agrees to accept and be bound by the Agreement by ordering products that are referenced. The Agreement becomes the complete and exclusive contract between BioMagnetic Solutions with respect to the Customers purchase of products.
Terms Conflict. If any conditions within the Agreement documents conflict with each other, they will be given the following priority: (a) the quotation; and (b) the Terms. BioMagnetic Solutions expressly rejects any different terms or provisions contained in any document provided by the Customer and if the Terms in this Agreement differ from the terms of an offer, this Agreement will serve as the governing terms for the contract between BioMagnetic Solutions and the Customer.
When Agreement takes Effect. The Agreement between BioMagnetic Solutions and the Customer comes into force when an email from BioMagnetic Solutions is received accepting an order.
2. Price
Determining Price. BioMagnetic Solutions may change their pricing at any time without notice. Prices quoted are valid for thirty (30) days, unless otherwise stated in writing.
Taxes and Fees. BioMagnetic Solutions product prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to an order. If they apply, it is the Customers responsibility to ensure they are paid. If BioMagnetic Solutions pays any taxes due they will be added to the invoice. If the Customer wishes to claim a tax exemption, they must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
Delivery Fees: Freight Policy. The Customer is responsible for standard delivery and handling charges, if applicable, and BioMagnetic Solutions prices do not include such charges unless expressly stated. If BioMagnetic Solutions pay such charges, they will be added to the Customer invoice.
3. Cancellation and Changes
Once an order is placed, it cannot be cancelled without written consent.
4. Payment
Payment Terms. BioMagnetic Solutions will invoice the Customer for the product price and all other charges due when products are shipped. BioMagnetic Solutions terms are strictly net for payment thirty (30) days from the date of invoice issuance by BioMagnetic Solutions, unless alternative arrangements are in place. Time of payment is of the essence. Each order is a separate transaction, and the Customer may not withhold payments or off-set payments, from one order against another. BioMagnetic Solutions reserves the right to require the Customer to make either a full or partial payment in advance, or provide other security as required should the company believe, in good faith, that the Customer’s financial condition does not justify the payments terms otherwise specified. Payments shall be made in the currency on the invoice. Payments may be made via ACH or other electronic interface that directly exchanges funds between the Customer’s bank account and that of BioMagnetic Solutions. Checks may be mailed to BioMagnetic Solutions address or a credit card may be used at the time of purchase. BioMagnetic Solutions cannot accept credit card payments made after the time of purchase. Payment shall not be deemed to have been made until BioMagnetic Solutions has received the amount due in full as cleared funds. BioMagnetic Solutions may in its absolute discretion apply any payments received from the Customer against any outstanding invoices, interest on arrears and costs accrued, in such order as it sees fit.
Late Payment. If the Customer is late in making payment, then, without affecting BioMagnetic Solutions other rights the Customer will be required to make late payment charge. The late payment charge will be calculated as interest on the sums due from the payment due date until the Customer makes payment in full, at the rate of either 1.5% per month, or, if less, the maximum amount allowed by law, this to include reasonable costs of collection (including collection agency fees and attorneys’ fees). BioMagnetic Solutions also reserves the right to either cancel or stop delivery of products in transit and withhold shipments in whole or in part if the Customer either does not pay us when due, or if they do not perform their obligations set out in their Agreement.
5. Delivery
Delivery. BioMagnetic Solutions will ship products to the destination specified in a Customer’s order. By agreeing to these Terms, the Customer (i) gives consent for BioMagnetic Solutions to arrange for carriage for all products supplied and (ii) if applicable waive a Customer’s right to arrange carriage or to give any specific instructions regarding carriage. BioMagnetic Solutions may make partial shipments and invoice each shipment separately. While every effort is made by BioMagnetic Solutions to adhere to delivery dates, times quoted for delivery are to be treated as estimates only, and BioMagnetic Solutions will not be liable for any loss or damages resulting from any delay in delivery. The Customer may not refuse delivery or otherwise be relieved of any obligations as the result of such delay. If a delivery of a product is delayed due to any cause within the Customers control, BioMagnetic Solutions will place the delayed products in storage at the Customers risk and expense. Any special delivery requirement must be notified to BioMagnetic Solutions by the Customer at the time of placing an order.
6. Risk of Loss and Title
Title to the products sold shall not pass to the Customer until all sums due to BioMagnetic Solutions from the Customer (whether in respect of those products or otherwise) have been paid to BioMagnetic Solutions in full. If the Customer defaults in paying any such sum, BioMagnetic Solutions shall be entitled to take such proceedings against the Customer as it may be entitled without further notice. Risk of loss will pass to the Customer when BioMagnetic Solutions loads them onto the commercial carrier at their facility.
7. Returns and Shortages
Returns. Customer Service must pre-authorize all product returns. Customer Service will approve return of any unopened product that is either damaged or defective on receipt, provided the Customer contacts Customer Service within five days after receiving the product and provided such damage or defect has not been caused by any failure by either the Customer or the carriers ability to handle or store products using reasonable care or as otherwise indicated on the label. If the Customer does not contact BioMagnetic Solutions within the five-day period, the company will deem the product to be accepted.
Product-Credit Eligibility. Any return not due to BioMagnetic Solutions error is subject to a restocking charge of 25% of the sale price. We do not credit shipping charges. The Customer will not receive credit for any product returned without prior consent.
8. Warranties
a. Limited Warranties. Unless a different warranty is included in the product literature, BioMagnetic Solutions warrants that each product will meet specifications. This warranty lasts from the time the product is shipped until the earlier of: (a) the product expiration or “use by” date; and (b) its specified number of uses. If BioMagnetic Solutions does not specify an expiry date, either the number of uses, or a different warranty period, the warranty will last for twelve (12) months from the date the product is shipped.
b. Exclusions. BioMagnetic Solutions warranties do not apply to (a) normal wear and tear; (b) accident, disaster or event of force majeure; (c) the Customers misuse, fault or negligence; (d) causes external to the products such as, but not limited to, power failure or electrical power surges; (e); instruments sold to Customers as ‘used’ products; (f) installation, removal, use, maintenance, storage, or handling in an improper, inadequate, or unapproved manner by the Customer or any third party (including the carrier), such as, but not limited to, failure to follow BioMagnetic Solutions instructions or operating guidelines, or protocols, operation outside of stated environmental or use specifications, or operation or contact with unapproved software, materials, chemicals or other products; or (g) products manufactured in accordance with specifications the Customer supplied to BioMagnetic Solutions. ADDITIONALLY, ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN BIOMAGNETIC SOLUTIONS STAFF WITHOUT BIOMAGNETIC SOLUTIONS PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY BIOMAGNETIC SOLUTIONS, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.
c. If BioMagnetic Solutions determine that products for which the Customer requested warranty services are not covered by the warranty, or if the company provide repair services or replacement parts that are not covered by this warranty, the Customer shall pay or reimburse BioMagnetic Solutions for all costs of investigating and responding to such request at the companies then prevailing time and materials rates.
d. Limitations.
e. BIOMAGNETIC SOLUTIONS WARRANTIES EXTEND ONLY TO THE ORIGINAL PURCHASER AND THE CUSTOMER CANNOT TRANSFER THEM. THE COMPANY’S OBLIGATION TO REPAIR OR REPLACE A PRODUCT IS THE CUSTOMER’S SOLE REMEDY. BIOMAGNETIC SOLUTIONS DOES NOT REPRESENT OR WARRANT THAT THE IMPORTATION, USE OR SALE OF PRODUCT IS FREE FROM INFRINGMENT OF ANY THIRD-PARTY RIGHTS.
f. EXCEPT AS OTHERWISE STATED, BIOMAGNETIC SOLUTIONS DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES
(a) OF USEFULNESS;
(b) OF SUFFICIENCY;
(c) OF MERCHANTABILITY;
(d) OF FITNESS FOR ANY PARTICULAR PURPOSE; AND/ OR
(e) THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
g. Remedies. During the applicable warranty period only, for products not meeting the company’s warranty, we agree, in BioMagnetic Solutions sole discretion, to repair or replace the non-conforming product and/or provide additional parts as reasonably necessary to comply with the company’s warranty obligations, but the Customer must first promptly notify us in writing when a defect or non-conformance is noticed and include in the notice clear details of a warranty claim. After BioMagnetic Solutions review, assuming a product return is authorized the company will provide the Customer with service data and/or a Return Material Authorization (“RMA”), which may include biohazard decontamination procedures and other product-specific handling instructions that must be followed. For valid product warranty claims timely made in accordance with this Agreement, the Customer must return the non-conforming products to BioMagnetic Solutions, unless the company agrees otherwise, and we will prepay the shipping costs. For instruments only, BioMagnetic Solutions may choose to provide the Customer with new or refurbished replacement parts. All replaced parts will become the property of BioMagnetic Solutions. The company will ship the Customers repaired or replacement products according to their delivery terms in Section 5 of these Terms.
9. Indemnification
The Customer shall indemnify, defend and hold BioMagnetic Solutions harmless against any and all claims, liabilities, expenses, loss, damages and costs which BioMagnetic Solutions may sustain or incur as a result of: (i) breach of these Terms by the Customer; (ii) breach of any contract or order by the Customer; (iii) the Customer’s non-compliance with the laws; and (iv) any claim, prosecution or suit brought against BioMagnetic Solutions 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 Customer’s purchase, use, transfer, sale or disposal of the products.
10. Intellectual Property
a. Use Limitations. BioMagnetic Solutions exclusively owns all intellectual property rights relating to their products and services. It is expressly understood that the transfer of the products 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 Customer any rights or license under the information, intellectual property rights or other rights owned by BioMagnetic Solutions concerning the products or the information except as expressly permitted in writing. Product may not be re-packaged or re-sold without written permission from BioMagnetic Soultions. The Customer agrees not to infringe upon BioMagnetic Solution’s patents or to attempt to reverse engineer, reconstruct, synthesize, or otherwise modify BioMagnetic Solution’s products. Unless expressly permitted by the company in writing, the Customer will not modify, change, remove, cover or otherwise obscure any of the company’s brands, trade or service marks on the products. Nothing in the Agreement limits BioMagnetic Solutions ability to enforce their intellectual property rights. BioMagnetic Soluitions shall not be liable for any loss or damage caused directly or indirectly by the infringement of any patent rights resulting from Customer’s use of the products provided.
b. Intellectual Property Ownership. BioMagnetic Solutions exclusively own all intellectual property rights in any inventions (patentable or otherwise), discoveries, improvements, data, know-how, or other results that are conceived, developed, discovered, reduced to practice, or generated by or for the company, or jointly by a Customer and BioMagnetic Solutions, in relation to processes, designs and methods utilized in manufacture of a custom product. A Customer agrees to transfer and assign BioMagnetic Solutions all rights, title, and interest in and to any joint intellectual property. At the request of BioMagnetic Solutions and at the company’s expense, the Customer will help us secure and record the company’s rights in such intellectual property.
11. Limitations and Exclusions of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIOMAGNETIC SOLUTIONS WILL NOT 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, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ALL COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT A CUSTOMER MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH THE COMPANIES PRODUCTS OR SERVICES, EVEN IF BIOMAGNETIC SOLUTIONS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, BIOMAGNETIC SOLUTIONS MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR ANY PRODUCT UNIT OR SERVICE, IS LIMITED TO THE AMOUNT A CUSTOMER PAID TO US FOR THE SPECIFIC PRODUCT PURCHASED THAT GAVE RISE TO THE LIABILITY. BIOMAGNETIC SOLUTIONS SHALL, HOWEVER, IN NO WAY BE LIABLE TO THE CUSTOMER IF SAID LOSS, COST, EXPENSE OR DAMAGE IS DUE TO THE CUSTOMER’S OWN NEGLIGENCE, ERROR OR OMISSION, IN WHOLE OR IN PART.
12. No Assignment.
These Terms are personal to the Customer and do not give any right to any third party. A Customer may not delegate any duties nor assign any rights or claims hereunder without prior written consent, and any such attempted delegation or assignment will be void.
13. Governing Law.
The Agreement and performance under it will be governed by the laws of the State of Delaware, and any disputes which may arise in relation to these Terms 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. Any action arising under the Agreement must be brought within one year from the date that the cause of action arose. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
14. Regulatory Restrictions.
A Customer must use the products in accordance with BioMagnetic Solutions instructions; (b) the Customer is solely responsible for making sure that the way they use the company’s products complies with applicable laws, regulations and governmental policies; (c) the Customer must obtain all necessary approvals and permissions a Customer may need; and (d) it is solely the Customers responsibility to make sure the products are suitable for a particular use.
15. Uncontrollable Circumstances.
BioMagnetic Solutions will not be responsible or liable for failing to perform their obligations under the Agreement to the extent caused by circumstances beyond their reasonable control. In certain situations, BioMagnetic Solutions may use their reasonable judgment and apportion products then available for delivery fairly among their Customers.
16. No Waiver; Invalidity.
BioMagnetic Solutions failure to exercise any rights under the Agreement is not a waiver of the company’s rights to damages for a Customer’s breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than the Customer or BioMagnetic Solutions will have any rights under the Agreement.
17. Headings.
Headings are for convenience only and shall not be used in the interpretation of these Terms.
18. Confidentiality.
a) The Customer agrees to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions (including any monoclonal antibody sequences, and /or ferrofluid composition) received from BioMagnetic Solutions as a result of discussions, negotiations and other communications in relation to the company’s products or services.
b) 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 Customer’s purchase of the products. 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 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.
c) The obligations arising from Section 18 shall survive for ten (10) years after the expiration, termination or invalidation, for any reason, of any related agreement.
d) 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.
e) For the avoidance of doubt, the non-public aspects of the products and associated information and the terms of any related quotation or order shall be treated as confidential information by BioMagnetic Solutions.
19. Notices.
Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when personally delivered, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address.
20. Requirement to Reduce to Writing.
No waiver, consent, modification, amendment, or changes to the terms of the Agreement will be binding unless in writing and signed by both the Customer and BioMagnetic Solutions. The company’s failure to object to terms contained in any subsequent communication from the Customer will not be either a waiver or modification of our Agreement.
21. General Matters.
a) Any provision of the Agreement, which is prohibited, or which is held to be void or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
b) These Terms are personal to the Customer and do not give any right to any third party. BioMagnetic Solutions may assign its rights under these Terms without notice to, or consent from, the Customer, however the obligations of the parties set out in these Terms shall pass to any permitted successor in title.
c) The Customer shall comply with all applicable national and international laws and regulations, in particular the applicable export control regulations and sanction programs. Products may be subject to international and national export restrictions. Acceptance and delivery of the order will be done in strict compliance with the appropriate legal provisions and embargo regulations. With the quotation, the Customer agrees to comply with all applicable laws and to provide all requested information in a timely manner to obtain the necessary documents and applicable export licenses by the relevant country authorities. BioMagnetic Solutions reserves the right to change or cancel any accepted order for products based on foreign trade law requirements, and to terminate the business relationship with the Customer in case of non-compliance with applicable foreign trade law requirements. BioMagnetic Solutions reserves the right to claim damages in case of the Customer’s non-compliance with applicable foreign trade law requirements.
d) Nothing contained in these Terms shall be construed as establishing or implying any partnership or joint venture between BioMagnetic Solutions and the Customer and nothing in these Terms shall be deemed to construe either of the parties as the agent of the other.
e) The Customer shall not use the name, logo, or trademarks of BioMagnetic Solutions in publicity, advertising, or similar activity, without the prior written consent of BioMagnetic Solutions in each instance.
f) 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 labor 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 BioMagnetic Solutions or a shortage of fuel, power, raw materials, labor 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.
g) Products should be handled and used only by trained personnel or under appropriate supervision. The application, use and processing of the products are beyond BioMagnetic Solutions control. No responsibility or liability whatsoever is accepted by BioMagnetic Solutions for any loss, cost, expense or damage arising out of or in relation to, the storage, use or handling of products supplied by BioMagnetic Solutions however caused.