1. Contract Terms.
These are the contract terms and conditions (“Terms”) under which we sell our products and services to you. Some of our products and services are subject to software licenses, limited use label licenses or other written contract terms that you will not find here (“Supplementary Terms”). You can find Supplementary Terms in our quotation to you, on our website, and in literature that accompanies the product or service. You may also obtain copies from Customer Services. These Terms, together with our quotation (if any) and Supplementary Terms (if any), create the contract (“Contract”) between us for the purchase and sale of products and services. The Contract between us is created when we accept your order, either by sending a written confirmation, or by shipping the product or otherwise initiating action to provide what you have ordered. The Contract is between you and Akron Biotech’s entity that appears on our quotation, order confirmation or dispatch note. If any conditions within the Contract documents conflict with each other, we will give them the following priority: the quotation, Supplementary Terms, and finally these Terms.
2. Delivery, Title and Ordering.
2.1 We will try to meet the delivery dates specified in your order, depending on availability and any lead times that may apply. Sometimes we deliver orders in installments. If we do, we may send you a separate invoice for each delivery.
2.2 Once you have placed your order, you cannot cancel it. If delaying the date of delivery would be helpful, please contact Customer Services to see if we can reschedule your delivery.
2.3 All our products are sold FOB Boca Raton. Products are delivered when we load them onto the commercial carrier at our facility. At this point you become responsible for risk of loss and damage. If any product is lost or damaged while it is being transported, we will try to help you deal with the issue with the carrier. We do not clear products for import into your country. Doing so is your responsibility. Title to products will pass to you (except for software, where we retain title) upon our delivery of the products to the carrier.
3.1 We want you to receive our products in good condition. You can return products that are damaged or defective on delivery, or correct any shortages, if you contact Customer Services within 5 days from the day you receive the products. When you contact Customer Services, we will give you instructions on returning the products and on replacements. If you do not contact us within this five- day period, the products will be deemed accepted, but you will lose any warranty rights. Authorization for all product returns must be approved by Customer Services and a return authorization number given to you prior to the return of goods. Not all items will be authorized for return. Items authorized for return must arrive at our facilities in a state satisfactory for resale to be eligible for product credit. A restocking fee of $25 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.
3.2 Custom products that we make in accordance with your specifications can only be returned if the custom products do not conform to the given specifications. In that case, we will, in our sole discretion, either replace the custom products or issue a refund to you equivalent to the price you paid for the custom products.
The price for products and services is shown in our quotation to you. If we do not provide you with a quotation, the price will be the list price that applies to your country on the date we receive your order. Our prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. You are also responsible for standard delivery and handling charges, if any. We will also add these charges to your invoice. For details of our freight policy, please call Customer Services.
You must pay invoices within 30 days from the invoice date in the currency specified in our invoice. Each order is a separate transaction, and you may not set-off payments from one order against another. If you are late in making payment, without affecting our other rights, we may suspend delivery or cancel the Contract, reject your future orders, and charge you a late-payment charge, from the due date until paid, at the rate of one percent (1.5%) per month (18% annually) or, if less, the maximum amount allowed by law. You agree to pay this late charge when we demand. If we appoint a collection agency or an attorney to recover any unpaid amounts, we can charge you and you agree to pay all reasonable costs of collection, including all associated reasonable attorneys’ fees.
6. Product Use and Restrictions.
You must use our products in accordance with our instructions. You are solely responsible for making sure that the way you use our products complies with applicable laws, regulations and governmental policies. You must obtain all necessary approvals and permissions you may need. It is solely your responsibility to make sure the products are suitable for your particular use.
7. Custom Products and Services.
7.1 When you ask us to manufacture a custom product, for example a custom cryopreservation media formulation, we may decline the design or manufacture of such custom product, at any stage of the design or manufacture process, if the manufacturing process renders production of such custom product unsuitable. If that is the case, we will notify you as soon as possible and you will not be obligated to pay any fees for any expenses incurred by us in connection with a declined product. Likewise, if any services we are asked to provide, such as bioassay or cell culture validation, are at any point deemed for any reason unfeasible or unsuitable, we will notify you as soon as possible and you will not be obligated to pay any fees for any expenses incurred by us in connection with a declined service.
7.2 By submitting an order for a custom product or service you represent and agree that you have provided us with all information that you are aware of regarding any biological, radiological and chemical hazards associated with the handling, transport, exposure or other usage of the materials you supply to us, and that you have the rights to the custom product or service.
8. Limitations of Liability.
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE 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 COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE CONTRACT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, OR ANY PRODUCT OR SERVICE, IS LIMITED TO THE AMOUNT YOU PAID TO US FOR THE PRODUCT OR SERVICE PURCHASED. HOWEVER, THESE PROVISIONS DO NOT LIMIT OUR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR FRAUD, FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY LAW. 289772_1 13.2 DELIVERY DATES AND TIMES ARE ESTIMATES ONLY AND WE WILL NOT BE LIABLE (IN CONTRACT, DELICT, TORT OR OTHERWISE) FOR ANY LOSSES, EXPENSES, CLAIMS OR DAMAGES CAUSED BY A LATE DELIVERY.
9. Export Control.
Products and information that you receive from us are subject to United States, European Union and local export-control laws and regulations. You may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any such product or information (including products derived from or based on our products or information) to any destination, entity, or person prohibited by United States, European Union or local laws or regulations.
10. Entire Contract.
10.1 The Contract represents the entire agreement between you and us regarding the products and services we provide to you under it, and supersedes and replaces any previous agreements between us (whether written or oral). Any of your additional or different terms and conditions that you may provide to us, are material alternations and we reject them. Our offer to sell products and perform services is expressly limited to the terms of the Contract. If you submit a purchase order, or other document for the purchase of products or services, whether or not in response to a quotation, you are deemed to have accepted and agree to the Contract, to the exclusion of (a) any other terms and conditions appearing in or referenced in your purchase order or other documents you give to us, and (b) any previous course of dealing, course of performance, trade usage or co-existent agreement. The Contract cannot be amended or modified unless you and we agree in writing.
10.2 We reserve the right to change these Terms at any time. Any changes made to these Terms will not apply to the Contract between us for any order we receive before the changes are made. The most recent revision date can be found at the end of these Terms.
11.1 We will not be responsible or liable for failing to perform our obligations under the Contract to the extent caused by circumstances beyond our reasonable control. In certain situations, we may use our reasonable judgment and apportion products then available for delivery fairly among our customers.
11.2 Our failure to exercise any rights under the Contract is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Contract 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 Contract. No person other than you or us will have any rights under the Contract. Headings are for convenience only and shall not be used in the interpretation of these Terms.
11.3 You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions (including any gene sequences, oligo types or sequences) received from us as a result of discussions, negotiations and other communications between us in relation to our products or services.
11.4 For U.S. Government customers and prime contractors, our products and services qualify as commercial items pursuant to 48 C.F.R. (FAR) 2.1. The following additional federal terms apply to your order, unless we and you have agreed that other terms apply instead. U.S. Government micro purchases shall be subject only to these standard commercial Contract Terms. All other U.S. Government orders shall be subject to only FAR 52.212-4 and FAR 52.212- 5, as well as these Contract Terms as an addendum thereto. If you are a prime contractor and your order constitutes a subcontract under the FAR, this Contract shall apply to your order, supplemented only by the minimum mandatory flow down clauses reflected in FAR 52.212-5(e) or FAR 52.244-6, as applicable.
12. Governing Law.
The Contract and performance under it will be governed by the laws of the State of Florida, USA, without regard to provision on the conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract.