RedShiftBio BioAnalytics, Inc. Terms and Conditions of Purchase and Sale
The purchaser of RedShiftBio Products (Buyer) accepts these Terms and Conditions Purchase and Sale of RedShiftBio BioAnalytics, Inc. (Seller or RedShiftBio) by signing and returning a copy of an attached quotation, returning Buyer’s own form of purchase order, or paying our invoice, accepting delivery under a Buyer purchase order, or by contract explicitly acknowledging and accepting these terms. Any attached quotation is an offer to sell and provide goods and/or services (Product) for the period of validity indicated. If no period of validity is indicated, the quotation is not an offer to sell. Acceptance is conditional on Buyer’s consent to the terms set forth herein, which are in lieu of and replace any terms and conditions set forth on Buyer’s specifications, purchase order, contract, or other documents. Any additional or conflicting terms or conditions of Buyer shall be wholly inapplicable to any sale made under the quotation and shall not be binding on Seller. To the extent the quotation is in any way deemed to be an acceptance of any other offer by Buyer, such acceptance is expressly conditional upon the consent of the Buyer to the terms and conditions contained herein. If the terms of the Seller quotation and these terms and conditions conflict, then the quotation shall have precedence.
2. Terms of Payment
(a) Unless otherwise stated in our quotation or invoice, all payments are 50% deposit on PO, 40% delivery, 10% acceptance. If all of the goods or services covered by this quotation are not delivered or performed at one time, Buyer shall pay for the quantity of goods delivered or services performed. Each shipment shall be considered an independent transaction. (b) All shipments and performance of work covered by this quotation shall be subject to the credit approval of Seller. As a part of this credit approval, Seller may, at any time, decline to make any shipments or perform any work, and/or impose such other terms or conditions or security arrangements as Seller, in its sole discretion, deems appropriate. (c) Seller reserves a security interest in any products sold to the extent of the invoiced amount. If Buyer defaults under any obligation hereunder, it agrees to make the products available so that Seller may repossess them without a breach of the peace. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement. On request of Seller, Buyer will execute a UCC financing statement to perfect its security interest and Buyer appoints Seller as its attorney in fact to file a financing statement in appropriate jurisdictions to perfect such security interest.
Prices for goods or services covered hereby shall be those shown on the Seller quotation, provided, however, that if such prices are based on the purchase of a particular quantity of goods (or over a particular period of time) and Buyer fails to purchase said quantity of goods, Seller shall have the right (in addition to any other remedies that Seller may have) to collect from Buyer the difference between the quotation price paid by Buyer for the goods purchased (based on the expected order volume) and a price for such goods commensurate with the quantity actually purchased by Buyer.
4. Taxes and Customs Duties
Unless otherwise stated on the face hereof, the prices stated herein do not include customs duties or any sales, use, excise, value added, franchise or other similar taxes. Buyer shall pay in addition to the prices stated, the amount of any present or future customs duties or any such taxes applicable to the sale of goods or performance of services covered by this quotation, or in lieu thereof, Buyer shall supply Seller with an appropriate tax exemption certificate.
5. Delivery Schedule
The delivery dates set forth in this quotation are approximate only, and Seller shall not be liable for, nor shall Seller be in breach of its obligations to Buyer because of any delivery made within a reasonable time of the stated delivery date. Seller may, by 30 days’ prior written notice to Buyer, change any delivery date, and such date shall become the agreed upon delivery date unless Buyer delivers to Seller its objection to such date in writing within ten (10) days of receipt of Seller’s notice.
Buyer may terminate this order in whole or in part upon written notice of such termination to Seller prior to the date of shipment by Seller. Buyer shall pay cancellation charges for such termination Buyer shall pay cancellation charges based on 25% selling price of product., where the percentage is calculated from the selling price of the Product being built.
6. Delivery and Risk of Loss
Unless stated otherwise by Seller, all shipments will be EXW (Ex Works) (as defined in Incoterms 2010) Seller's shipping facility, if destination of delivery is outside the United States and F.O.B. (Free on Board) (as defined in U.C.C. Section 2-319) Seller's shipping facility, if destination of delivery is within the United States. Title to each shipment of the Products sold hereunder and risk of loss thereon shall pass to Buyer when Seller or its agent tenders such shipment to the carrier, but such shipment shall remain subject to Seller's rights of stoppage in transit and of reclamation.
7. Force Majeure
Seller shall not be liable for any failure to deliver, or delay in the delivery of, any goods or services due to any cause beyond its control, including, but not limited to, acts of God, acts of civil or military authority, natural disasters (including but not limited to earthquakes, floods, and epidemics), riots, wars, sabotage, labor disputes, yield problems, governmental actions, or inability to obtain materials, subassemblies, components, energy, manufacturing facilities, or transportation. In the event that any such delay, the date of delivery or performance hereunder shall be extended by a reasonable period of time. In the event that Seller’s production is curtailed for any reason, Seller may allocate its production among its customers at its discretion on a commercially reasonable basis.
8. Acceptance and Warranty
Any product or service sold or provided pursuant to this quotation shall be deemed accepted by Buyer upon delivery, subject to the warranty provisions set forth in this Section 8. Seller warrants that goods delivered hereunder shall reasonably comply with the applicable Seller data sheet and/or specifications as referenced in the Seller quotation and shall be free from defects in material and workmanship, provided that the product has been operated at all times in accordance with the instruction manual and user guide, and by or under the direct supervision of a certified operator who has attended Seller's training course for the product if made available to Seller. The warranty period for the Instrument terminates twelve (12) months after date of shipment.
Seller warrants that the service parts purchased from Seller will be free of defects in materials and workmanship, only if such parts are installed by the seller or seller representative. The warranty period for the service parts are the greater of (i) the remaining warranty period of the Instrument, or (ii) ninety (90) days from the date of installation of the service part.
Products which are indicated on the quotation as “samples”, “demonstration/evaluation units”, “beta units”, and/or “prototypes” are sold AS IS, WITH ALL FAULTS, and with no express or implied warranty of any kind. Any sample or model used in connection with this contract is for illustrative purposes only, is not part of the basis of the bargain, and is not to be construed as a warranty that the products will conform to the sample or model. No affirmation of fact or promise made by Seller, whether or not in this contract, shall constitute a warranty that the Products will conform to the affirmation or the promise.
Seller shall be notified promptly in writing upon discovery of any defect in the goods, including a detailed description of such defect. The goods must be returned to Seller freight pre-paid, accompanied by Seller’s Returned Material Authorization form. Prior to return of goods by Buyer, Buyer shall afford Seller the opportunity to inspect such goods at Buyer’s location, and any such goods so inspected shall not be returned to Seller without its prior written consent.
The warranties provided above and the remedies provided below will not apply to any Product if: (i) Seller determines that a problem is caused by accident, abuse, misuse, negligence, misapplication, fire, earthquake, flood, other force majeure event, failure of electrical power, the use of unauthorized parts or reagents, or unauthorized repairs or modifications; (ii) Seller determines that a problem is caused during or as a result of shipment or relocation; (iii) Seller's serial number has been removed or defaced from the Product; or (iv) a problem arises from or is based on Seller's compliance with Buyer's specifications
For any breach of the warranties, Seller will, at its own expense and option, and as its sole obligation, and as Buyer's exclusive remedy, (a) repair or replace any defective Product if Buyer notifies Seller during the applicable warranty period and Seller determines that the Product is defective and is covered by the warranty; or (b) if Seller determines that it is unable to repair or replace the defective Product, refund the purchase price paid by Buyer for the defective Product. Seller is not required to repair, replace or refund any defective Product if Buyer has not returned a signed clearance certification provided by Seller, which requires Buyer to certify that the Product has been appropriately decontaminated and cleaned and is safe for handling by Seller personnel. The warranty period for the repaired or replaced Product will not exceed the warranty period for the defective Product. The warranty period for any replacement parts, which may be new or reconditioned at Seller's sole discretion, will not exceed the warranty period for the defective Product.
Seller shall return any goods repaired or replaced under this warranty to Buyer transportation pre-paid and reimburse Buyer for the transportation charges paid by Buyer to return the goods to Seller. All goods found by Seller not to be defective will shipped to the Buyer F.O.B. to Seller’s carrier or designated place of shipment. Title and all risk of loss or damage to the goods shall pass to Buyer upon delivery to carrier and Buyer is responsible for all insurance on risk of loss in transit.
THE FOREGOING WARRANTY CONSTITUTES REDSHIFT’S EXCLUSIVE LIABILITY, AND THE EXCLUSIVE REMEDY OF THE BUYER, FOR ANY BREACH OF ANY WARRANTY OR OTHER NONCONFORMITY OF THE GOODS COVERED BY THIS QUOTATION. THIS WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE , OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE AS EXPRESSLY HEREIN.
In the event that Buyer breach such contract in any manner set forth below, Seller may (in addition to any other rights or remedies provided herein or at law or in equity), by written notice to Buyer, terminate the contract or suspend its performance hereunder, without any liability to Seller. Buyer shall pay all costs, including reasonable attorney’s fees, incurred by Seller in any action brought by Seller to collect payments owing or otherwise enforce its rights.
Any one of the following acts by Buyer shall constitute a breach of Buyer’s obligations under the contract formed by this quotation: (a) Buyer fails to make payment for any goods or services when due; (b) Buyer fails to accept conforming goods or services supplied hereunder; (c) The filing of a voluntary or involuntary petition in bankruptcy against Buyer, the institution of any proceeding in insolvency or bankruptcy (including reorganization) against Buyer, or an assignment for the benefit of creditors of Buyer; or
(c) Any other act by Buyer in violation of any of the material provisions of this agreement.
Buyer is solely responsible for determining whether the Product is fit for its intended purpose and suitable for Buyer’s method of application. Accordingly, Seller is not responsible for the results or consequences of use, misuse or application of its Product by anyone.
Limitation of Liability. (a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, REDSHIFT SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE,EXEMPLARY, OR OTHER DAMAGES WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF REDSHIFT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. REDSHIFT SHALL NOT BE LIABLE FOR EXCESS COSTS OF REPROCUREMENT. (b) UNDER NO CIRCUMSTANCES SHALL REDSHIFT’S TOTAL LIABILITY OF ALL KINDS ARISING OUR OF OR RELATED TO THE CONTRACT EXCEED THE TOTAL AMOUNT PAID BY BUYER TO REDSHIFT HEREUNDER FOR THE GOODS OR SERVICES ACTUALLY GIVING RISE TO SUCH LIABILITY (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS TO BUYER FOR CLAIMS OR DAMAGES
BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. (c) IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS CONTRACT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. (d) NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, ANY CLAIMS BY BUYER AGAINST REDSHIFT RESULTING FROM REDUCTIONS IN CONTRACT VALUE, PENALTIES, ETC., ASSESSED BY BUYER’S CUSTOMER AND ATTRIBUTABLE TO THE ACTION OR INACTION OF REDSHIFT, SHALL NOT INCLUDE ANY OF BUYER’S MARKUPS OR PROFIT.
14. Export Compliance
Seller requires compliance with US Export Law. The Products and/or technologies of Seller may not be resold, exported, re-exported or otherwise transmitted without approval by the US Department of Commerce, Bureau of Export Administration and in accordance with the US Export Administration Regulations (EAR). Buyer agrees to execute upon request of Seller an “Export Control Acknowledgement” stating that Buyer has been advised by Seller of the export restrictions contained herein. Buyer will defend, indemnify, and hold harmless Seller from and against any violation of any laws, rules or regulations by Buyer or any of its agents, officers, directors, or employees in violation of this Section.
(a) No U.S. government procurement requirements or regulations shall be binding upon Seller unless specifically agreed to in writing. (b) The validity, performance, and construction of these terms and all sales hereunder shall be governed by the laws of the Commonwealth of Massachusetts, without regard to any conflicts of law principles that would result in application of laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this contract.. (c) Buyer may not assign its rights (whether by transfer or operation of law) nor delegate its obligations under the contract formed by this acknowledgment by operation of law or otherwise, without the prior written consent of Seller and any purported assignment or delegation without such consent shall be of no force or effect. (d) Any waiver by Seller of any default by Buyer of any term hereof shall not be deemed to be a continuing waiver of any other default or any other term. (e) The terms and conditions of the contract formed by this quotation may not be superseded, modified, or amended except in a writing stating that it is such a modification and signed by an authorized representative of each party. (f) Seller shall retain title to and possession of any tooling of any kind used in the production or testing of products furnished hereunder. (g) Buyer acknowledges that all or part of the products may be manufactured, assembled or otherwise worked on by Seller’s or its subcontractors' facilities, domestic and foreign. (h) The contract formed by this quotation, which includes the documents incorporated by reference on the face here of (but expressly does not include any of the terms and conditions of Buyer’s purchase order contract or any similar document used by Buyer) shall constitute (except for any Confidential Disclosure Agreement or Seller Licensing Agreement) the entire agreement between Buyer and Seller with regard to the goods or services listed on the face hereof, and expressly supersedes and replaces any prior or contemporaneous agreements, written or oral, relating to such goods or services. (i) Any legal action or other legal proceeding relating to this contract or the enforcement of any provision of this contract must be brought in any state or federal court located in Suffolk county, Massachusetts. Buyer and Seller expressly and irrevocably consents and submits to the jurisdiction of such courts. The prevailing party in any legal action brought by one party against the other shall be entitled, in addition to any rights and remedies it may have, to reimbursement for its expenses incurred thereby, including court costs and reasonable attorney's fees. (j) Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these terms and conditions by Seller shall be barred unless commenced by Buyer within one (1) year from the accrual of such cause or action.
RedShift™, RedShiftBio™, and See Change™ are trademarks of RedShift BioAnalytics, Inc.