- Controlling Terms. Biolog, Inc. (“Seller”) seeks to provide its customers with prompt and efficient service. However, to negotiate individually the terms and conditions of each sales contract would substantially impair Seller’s ability to provide such service. Accordingly, products and services furnished by Seller are sold only on the terms and conditions stated herein. Seller’s acceptance of your order to purchase the products described on the reverse side hereof (the “products”) is conditioned on your assent to these terms and conditions in lieu of those in any purchase order or elsewhere, which assent shall be shown by your failure to object to such terms and conditions within a reasonable time. Objections to any terms and conditions made after acceptance of any product or service hereunder shall in no event be deemed to have been made within a reasonable time. Seller’s failure to object to provisions contained in any communication from you shall not be deemed a waiver of these terms and conditions. Any changes in the terms and conditions contained herein must specifically be agreed to in writing by an authorized officer of Seller before becoming binding.
- Delivery. (a) Delivery will be made EXW point of shipment at Seller’s plant of manufacture or Seller’s warehouse. In the absence of specific shipping instructions, Seller will ship by the method it deems appropriate. In all cases, Seller will ship products requiring refrigeration or other special handling in accordance with Seller’s internal shipping and handling standards. Transportation charges will be collect or, if prepaid, will be subsequently invoiced to you. Seller reserves the right to make deliveries in installments and the contract between you and Seller shall be severable as to any such installment. Delay in delivery or other default in any installment shall not relieve you of your obligation to accept and pay for remaining deliveries. All claims for delay in delivery or shipment shortage shall be deemed waived unless presented to Seller in writing within thirty (30) days after delivery of each shipment. (b) You shall accept or reject the products in each shipment within thirty (30) days after delivery. Products not so rejected in writing specifying the respect in which such products are nonconforming will be deemed accepted.
- Responsibility and Title. Title to products sold hereunder shall pass from Seller to you at the EXW point and risk of loss and damage shall be borne by you thereafter. The time of delivery is the time the product to be delivered is ready for carrier pickup. Notwithstanding passage of title, you hereby grant and Seller herby retains a purchase money security interest and right of possession in the products as security for full payment of their purchase price plus all applicable taxes, freight and other charges. You agree to cooperate in whatever manner necessary to assist Seller in the perfection of said purchase money security interest.
- Limited Warranty: For one year after the date of the invoice from Seller, Seller will either, at its sole discretion, repair or replace any product covered by such invoice purchased by you from Seller or Seller’s authorized distributor which, in Seller’s judgment, is defective in materials or workmanship, or refund the amount paid by you for such product. If the product is dated as to shelf life, this limited warranty shall in no event extend beyond such shelf life. In the case of third-party computer operating system software, this limited warranty shall extend only for thirty (30) days after the date of invoice and shall entitle you only to an exchange, with no right to a refund. This limited warranty does not cover: (a) computer applications software (which is governed by the Biolog, Inc. Software License Agreement); (b) consumable or disposable items not dated by Seller as to shelf life, including, without limitation, lamp assemblies, bulbs, fuses, and batteries; or (c) damage caused by batteries, probes or electrodes. This limited warranty does not apply to any product that has been misused, neglected, modified, or repaired by anyone other than an authorized service facility, or to any product requiring refrigeration or other special handling that is not properly refrigerated or so handled. All warranty registration cards included with the products must be completed and returned by you within ten (10) days after the date of purchase. Any product which is or becomes defective during said applicable warranty period shall be returned by you, transportation, custom duties and other fees prepaid, in the original carton to Seller’s principal facility in Hayward, California, or such other place which may be designated by Seller. You must obtain prior approval from Seller before returning any product to Seller. Transportation charges, custom duties and other fees for return to you shall be paid by you, and you shall bear all risk of loss or damage during transportation to and from Seller. Seller shall reimburse you for transportation charges, custom duties and other charges incurred by you in returning product pursuant to this paragraph only if: (a) you have complied with all of these Terms and Conditions; and (b) the returned product is defective in materials or workmanship and is covered by the limited warranty provided in this paragraph.
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THIS DESCRIPTION ON THE FACE HEREOF , ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE OR COURSE OF PERFORMANCE NOTWITHSTANDING. THE FOREGOING IS SPECIFICALLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED , INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE FOR A PARTICULAR PURPOSE AND ANY WARRANTIES THAT THE PRODUCTS DO NOT INFRINGE THE PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. NO AGENT OR REPRESENTATIVE OF SELLER HAS ANY AUTHORITY TO BIND SELLER TO ANY AFFIRMATION , REPRESENTATION OR WARRANTY CONCERNING PRODUCTS MADE BY SELLER. IN NO EVENT SHALL SELLER BE LIABLE FOR LOSS OF PROFIT, LOSS OF DATA, DAMAGE TO OTHER EQUIPMENT USED IN CONJUNCTION WITH THE PRODUCTS WHETHER OR NOT USED PROPERLY, OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES. YOU AGREE THAT SELLER’S LIABILITY FOR DAMAGES, IF ANY, SHALL NOT EXCEED THE PAYMENTS MADE BY YOU FOR ANY DEFECTIVE PRODUCT .
- Terms and Credit. Terms are net thirty (30) days from the date of invoice. Accounts outstanding over thirty (30) days will be subject to a charge of one and one-half percent (1 ½%) per month. You agree that the late charge provided for herein is a fair and reasonable estimate of the costs that Seller will incur by reason of your late payment. This liquidated damages provision shall not be construed as an agreement to extend the time for payment and any agreement to extend the time for payment shall be null and void unless agreed to by Seller in writing. If deliveries are made in installments, each installment shall be separately invoiced. If, in the judgment of Seller, your financial condition at any time shall not justify continuation of production or shipment on the terms of payment specified above. Seller may require full or partial payment in advance and may accelerate unpaid amounts for products already invoiced. In the event of your bankruptcy or insolvency, or in the event any proceeding is brought by or against you under the bankruptcy or insolvency laws, Seller shall be entitled to cancel any order outstanding and shall receive reimbursement for its cancellation charges. You agree to furnish to Seller current credit and financial information and you hereby represent and warrant to Seller that all such information is true, correct and complete.
- Software License. To the extent any of the products include computer applications software furnished by Seller, you shall use such software pursuant to and in compliance with the Software License Agreement that will accompany such software when shipped to you. Your acceptance of such products shall confirm your acceptance of such software license.
- Taxes. The amount of any present or future sales, revenue, excise or other taxes, duties, tariffs, fees or other charges of any nature imposed by any public authority (national, state, local or other) applicable to the products or to the manufacture or sale thereof by Seller (other than taxes imposed on Seller based on Seller’s income) shall be added to the purchase price and shall be paid by you.
- Cancellation and Termination. (a) No cancellation by you for default shall be effective unless and until Seller shall have failed to correct such alleged default within thirty (30) days after receipt by Seller of a written notice specifying such default. Seller shall not be liable for any delay in or failure of performance hereunder due to causes beyond its control. Such causes shall include, but shall not be limited to, fire, strike, insurrection, riot, flood, epidemic, embargoes, quarantine restrictions, war, acts of God, interruption of transportation or inability to obtain necessary labor, materials or facilities. The delivery schedule hereof shall be extended for a period of time equal to the time lost because of any delay which is excusable under this clause. (b) No delivery delay requested by you on an order placed will be effective unless covered by an amendment to the order that provides for the payment of any agreed-upon costs of the delay incurred by Seller and that is signed by an authorized officer of Seller. In all other cases, you will be responsible for paying for all products at the time specified in the original order for such products.
- Assignment. These terms and conditions shall be binding upon and shall inure to the benefit of the respective successors and assigns of the entire business and goodwill of either party, or of the part of the business of either party used in the performance of this contract, but shall not be otherwise assignable without the prior written consent of the other party.
- Governing Law: Jurisdiction. These terms and conditions shall be governed by and construed in accordance with the internal laws of the State of California (irrespective of its choice of law principles). Any action arising hereunder shall be brought in either the Superior or Municipal Court for the County of Alameda or the United States District Court for the Northern District of California, and each of the parties hereto hereby submits itself to the in personam jurisdiction of such courts for purposes of any such action. You further agree that service upon you in any such action or proceeding may be made by first class mail, certified or registered, to your address last appearing on the records of Seller.
- Exports. You assume all responsibility for obtaining any required export authorizations with respect to the products. You hereby assure Seller that you shall not make any export of the products except in compliance with applicable law, including any export of any product restricted for shipment to any q, w, y or z countries specified in the Export Administration Regulations to any such country without the prior written consent of the U.S. Department of Commerce. You hereby agree to indemnify Seller against and save Seller harmless from any and all liabilities, costs, penalties, fines and expenses resulting from your failure to comply with any requirements pertaining to export of the products.
- Severability. If any provision herein or the application thereof shall for any reason and to any extent be invalid or unenforceable, the remainder hereof and the application of such provision to other persons or circumstances shall be interpreted so as best to effectuate the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision with a valid and enforceable provision which will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
- Notices. Any notice desired or required to be given hereunder shall be in writing and shall be effective only when personally delivered or five (5) days after being deposited in the United States Mail via certified mail, postage prepaid, addressed to Seller at 21124 Cabot Boulevard, Hayward, California 94545 or to you at the address last appearing on the records of Seller.
- Waivers. Any provisions herein may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by the party to be bound thereby and no such waiver shall be deemed to constitute a waiver of any succeeding or other breach, default or other circumstance.
- Attorney’s Fees. The prevailing party in any action arising hereunder shall be entitled to recover all of such party’s costs of suit, including reasonable attorney’s fees (as well as costs, expenses and fees on any appeal). The prevailing party shall be the party entitled to recover its costs of suit, regardless of whether such suit proceeds to final judgment.
- Limitation of Actions. No action, regardless of form, arising out of or in any way connected with these terms and conditions or the products sold hereunder may be brought by you more than one year after such cause of action shall have accrued.
- These terms and conditions constitute the entire understanding of the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect hereto. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.