1. General: These Terms and Conditions of Sale (“Terms and Conditions”) shall govern the sale and license to the purchaser (“Buyer”) of consumables, reagents, instruments, software, and other products (“Products”) by Phoenix S&T, Inc. (“PST”) provided to Buyer in connection therewith. These Terms and Conditions shall replace and supersede any current or future purchase orders or similar forms that are not mutually signed by PSTand Buyer.
2. Price. Except for deliveries within the Europe Union, prices exclude all insurance, freight, taxes, fees, duties and levies, which shall be payable by Buyer.
3. Delivery: Products will be packed in PSTs standard shipping packages. PST may make partial deliveries. PST will ship via carrier selected by PST.
(a) For Deliveries Outside the Europe Union: Tender will be F.O.B./FCA shipping point. Title (except for software in which case PST shall retain title) and risk of loss or damage will pass to Buyer upon delivery of the Products to the carrier.
(b) For Deliveries Within the Europe Union: Products shall be Delivered Duty Paid to the Buyer’s site and the Buyer will be the importer for the Products and be responsible for paying the import VAT or similar tax(es) within the Buyer’s country. Title (except for software in which case PST shall retain title) and risk of loss will pass to Buyer upon delivery of the Products to the carrier. Insurance costs will be borne by PST to the Buyer’s site.
4. Cancellation and Rejection: BUYER MAY NOT CANCEL ANY ORDER ONCE PST HAS ACCEPTED BUYER’S PURCHASE ORDER (THE “ ACCEPTANCE DATE”). BUYER WILL BE RESPONSIBLE FOR, AND IMMEDIATELY PAY, ANY FEES INCURRED BY PST OR PAYMENTS OWED BY BUYER WITH RESPECT TO BUYER’S ORDER IN THE CASE OF A CANCELLATION AFTER THE ACCEPTANCE DATE. Any claims for damaged missing or defective Product must be reported in writing to PST by Buyer within five (5) days from the date of receipt of Product. For any valid claim made, PST shall repair or replace the Product. The foregoing shall be Buyer’s sole and exclusive remedy for damaged or missing Products, and, except for express warranty rights, for defective Products. Return of products for a cash refund must be pre-approved by Phoenix S&T and is subject to a 15% restocking fee.
5. Payment: Buyer will be invoiced at the time of shipment of each Product. Buyer shall make payment in full within thirty (30) days of the date of the invoice. Late payments may incur a charge at the rate of one and one-half percent (1.5%) percent per month, or the maximum allowed by law, whichever is less. Further shipment of Products may be declined without advance notice if Buyer fails to make any payment when due, or if the financial condition of Buyer becomes unsatisfactory to PST. PST may elect to retain a security interest in all Products sold to Buyer to secure all of Buyer’s obligations to PST under these Terms and Conditions, and Buyer will execute any documents necessary to create and perfect this interest. Sales by PST shipped outside the U.S. may require payment on an irrevocable letter of credit reasonably acceptable to PST.
6. Limited Warranty: PST warrants to and only to Buyer for thirteen (13) months from the date of shipping or one (1) year from the date of installation (or for the period specified in the PST product insert (whichever occurs first, that the software and instruments are free from defects in material and workmanship and conform to PST’s published specifications in all material respects. Service will be provided pursuant to PST’s standard service terms and conditions, which shall in all cases include the right for PST to perform at least one preventative maintenance visit within 6 months of system installation and to perform additional preventative maintenance service calls at any time during the warranty period. PST’s sole and exclusive liability (and Buyer’s sole and exclusive remedy) under the foregoing warranty shall be to repair or replace software and instruments or provide Buyer a refund, as solely determined by PST. Nonconforming instruments will be serviced at Buyer’s facility or, at PST’s option, PST’s facility. If service is performed at PST’s facility, PST will bear shipping costs. Except as provided above, this warranty does not apply to any defect caused by failure to provide a suitable storage, use, or operating environment, use of non-recommended reagents, spills, or the use of the Products for a purpose or in a manner other than that for which they were designed, modifications or repairs done by Buyer, or any other abuse, misuse, or neglect of the Products. This warranty applies only to Buyer, and not third parties. The foregoing is not intended to limit any warranty extended to Buyer by a third party original equipment manufacturer of a Product or component thereof, provided that any remedy received by Buyer under any such warranty shall relieve PST of its obligations with respect to the subject of such remedy. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PST AND ITS SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
7. Pre-release Products: If any Product is a beta, technology access, early access, or other pre-commercial release version (“Pre-release Product”), then this Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in these Terms and Conditions, this Section shall supersede such other term(s) and condition(s) with respect to the Pre-release Product, but only to the extent necessary to resolve the conflict. Buyer acknowledges that the Pre-release Product is a pre-release version, does not represent final product from PST, and may contain defects, bugs, errors and other problems that could cause system or other failures, sample loss and data loss. CONSEQUENTLY, THE PRE-RELEASE PRODUCT IS PROVIDED TO YOU “AS IS”, AND PST DISCLAIMS ALL WARRANTIES (INCLUDING THE LIMITED WARRANTY SET FORTH ABOVE) AND ALL LIABILITY OBLIGATIONS TO BUYER OF ANY KIND. Buyer acknowledges that PST has not promised or guaranteed to Buyer that Pre-release Product will be announced or made available to anyone in the future, that PST has no express or implied obligation to Buyer to announce or introduce the Pre-release Product and that PST may elect not to introduce a product similar to or compatible with the Pre-release Product. Accordingly, Buyer acknowledges that any research or development that Buyer performs using the Pre-release Product or any product associated with the Pre-release Product is done entirely at Buyer’s own risk.
8. Limited License: Subject to these Terms and Conditions, and to the terms and conditions of any license provided by PST that is specific to a particular Product (which shall govern with respect to such Product in the event of conflict with these Terms and Conditions), PST hereby grants to Buyer a non-exclusive, non-transferable, non-sublicensable license to use the Product(s) provided to Buyer by PST only in accordance with the manuals and written instructions provided by PST. Buyer understands and agrees that except as expressly set forth in these Terms and Conditions (or in the PST-provided license specific to a particular Product), no right or license to any patent or other intellectual property owned or licensable by PST is conveyed or implied by these Terms and Conditions or any Product. In particular, no right or license is conveyed or implied to use any Product provided hereunder in combination with a product not provided, licensed or specifically recommended by PST for such use.
9. Products Marketed for Research Use Only: Products marketed by PST for research use only do not have the approval or clearance of the U.S. Food and Drug Administration (“FDA”) or other regulatory approval, clearance or registration for in vitro diagnostic (“IVD”) use. No license is conveyed or implied for Buyer to use, and Buyer agrees not to use, such Products in any manner requiring FDA or other regulatory approval, clearance or registration relating to IVD use.
10. Use Restrictions: Buyer is not licensed to, and agrees not to: (a) resell any PST-supplied instrument, software, consumable or reagent, (b) transfer, or distribute any PST-supplied instrument, software, consumable or reagent, directly or indirectly, to any third party for any purpose or use, except as otherwise approved by PST in writing.
11. Product Improvements: Except to the extent prohibited by applicable law, Buyer hereby grants to PST a non-exclusive, worldwide, fully sublicensable, fully paid-up, royalty-free, irrevocable, perpetual license to all Product Improvements. Buyer need not disclose any Product Improvements to PST except as may be reasonably required to comply with the foregoing license. For purposes of this Section, a “Product Improvement” shall mean any invention conceived or reduced to practice using a Product that relates to (a) design, manufacturing, formulation or PST products.
13. Liability Limitation: EXCEPT TO THE EXTENT CAUSED BY PST’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR REQUIRED BY APPLICABLE LAW, PST SHALL HAVE NO LIABILITY FOR ANY LOSS OF USE OR PROFITS, PROCUREMENT OF SUBSTITUTE GOODS OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF PST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AS TO ANY PST LIABILITY NOT LEGALLY SUBJECT TO THE FOREGOING, PST’S LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO PST IN THE PRIOR TWELVE (12) MONTHS. BUYER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE PRODUCTS AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.
14. Export Controls: Buyer acknowledges that the Products and related materials may be subject to export controls under the U.S. Export Administration Regulations and related U.S. laws. Buyer will,
(a) comply strictly with all legal requirements established under these controls,
(b) cooperate fully with PST in any official or unofficial audit or inspection that relates to these controls and,
(c) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product or related technical documents or materials or any direct product thereof to any country (or to any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of PST and the applicable U.S. Government agency.
15. Unforeseen Events: PST shall not be liable for delay or failure in performance of any obligations hereunder if performance is rendered impracticable by the occurrence of any condition beyond the reasonable control of PST. In the event of any such delay or failure in performance, PST shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances.
16. Miscellaneous: These Terms and Conditions constitute the entire agreement between Buyer and PST with respect to the subject matter hereof and is the final, complete, and exclusive statement of the terms of the agreement, superseding all prior written and oral agreements, understandings and undertakings with respect to the subject matter hereof. The waiver of any provision or any breach thereof shall not affect any other provision of these Terms and Conditions. To the extent permitted by applicable law, these Terms and Conditions shall be governed by and construed according to the laws of the State of Delaware, without regard to conflict of law provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement shall be construed without the unenforceable provision or portion thereof.