Hycult Biotech, Inc. Product Sale Terms and Conditions
1. General. These Terms and Conditions of Sale (“Terms and Conditions”) shall govern the sale and license to the purchaser (“Buyer”) of kits, antibodies, services, consumables, reagents, software, and other products (“Products”) by Hycult Biotech, Inc. (“Hycult Biotech”) 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 Hycult Biotech and Buyer.
2. Price. excludes all insurance, freight, taxes, fees, duties and levies, which shall be payable by Buyer.
3. Delivery. Products will be packed in Hycult Biotech’s standard shipping packages. Hycult Biotech may make partial deliveries. Hycult Biotech will ship via carrier selected by Hycult Biotech. (a) For Deliveries Outside United States: Tender will be F.O.B./FCA shipping point. Title and risk of loss or damage will pass to Buyer upon delivery of the Products to the carrier. (b) For Deliveries Within South America: 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 and risk of loss will pass to Buyer upon delivery of the Products to the carrier. Insurance costs will be borne by the Buyer’s site.
4. Cancellation and Rejection. BUYER MAY NOT CANCEL ANY ORDER ONCE HYCULT BIOTECH HAS ACCEPTED BUYER’S Purchase Order. BUYER WILL BE RESPONSIBLE FOR, AND IMMEDIATELY PAY, ANY FEES INCURRED BY HYCULT BIOTECH 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 Hycult Biotech by Buyer within five (5) days from the date of receipt of Product. For any valid claim made, Hycult Biotech 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 or deficient Services.
5. Payment. Buyer will be invoiced at the time of shipment of each Product or upon completion of Service. 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 Hycult Biotech. Hycult Biotech may elect to retain a security interest in all Products sold to Buyer to secure all of Buyer’s obligations to Hycult Biotech under these Terms and Conditions, and Buyer will execute any documents necessary to create and perfect this interest. Sales by Hycult Biotech shipped outside the U.S. may require payment on an irrevocable letter of credit reasonably acceptable to Hycult Biotech.
6. Limited Warranty. Hycult Biotech warrants to and only to Buyer for thirteen (13) months from the date of shipping or one (1) year from the date of receipt (or for the period specified in the Hycult Biotech’s product insert), whichever occurs first, that the reagents, consumables, and software are free from defects in material and workmanship and conform to Hycult Biotech’s published specifications in all material respects. Hycult Biotech’s sole and exclusive liability (and Buyer’s sole and exclusive remedy) under the foregoing warranty shall be to repair or replace software and consumables or provide Buyer a refund, as solely determined by Hycult Biotech. Nonconforming products will be serviced at Buyer’s facility or, at Hycult Biotech’s option, Hycult Biotech’s facility. If service is performed at Hycult Biotech’s facility, Hycult Biotech will bear shipping costs. Reagents or consumables reasonably determined by Hycult Biotech to be defective, independent of user error, shall be replaced by Hycult Biotech on a 1:1, like-kind basis at no cost to Buyer provided that such defective reagents or consumables were used by Buyer prior to their expiration date, and the defect was promptly reported with appropriate detail to Hycult Biotech's technical support. 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 Hycult Biotech of its obligations with respect to the subject of such remedy. TO THE EXTENT PERMITTED BY APPLICABLE LAW, HYCULT BIOTECH 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 or Service 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 Hycult Biotech, 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 HYCULT BIOTECH DISCLAIMS ALL WARRANTIES (INCLUDING THE LIMITED WARRANTY SET FORTH ABOVE) AND ALL LIABILITY OBLIGATIONS TO BUYER OF ANY KIND. Buyer acknowledges that Hycult Biotech has not promised or guaranteed to Buyer that Pre-release Product will be announced or made available to anyone in the future, that Hycult Biotech has no express or implied obligation to Buyer to announce or introduce the Pre-release Product and that Hycult Biotech may elect not to introduce a product or service 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 Hycult Biotech 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), Hycult Biotech hereby grants to Buyer a non-exclusive, non-transferable, non-sublicensable license to use the Product(s) provided to Buyer by Hycult Biotech only in accordance with the manuals and written instructions provided by Hycult Biotech. Buyer understands and agrees that except as expressly set forth in these Terms and Conditions (or in the Hycult Biotech-provided license specific to a particular Product), no right or license to any patent or other intellectual property owned or licensable by Hycult Biotech is conveyed or implied by these Terms and Conditions for any Product or Service. 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 Hycult Biotech for such use.
9. Products Marketed for Research Use Only. Products marketed by Hycult Biotech 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. Except as otherwise approved by Hycult Biotech in writing, Buyer is not licensed to, and agrees not to: (a) resell any Hycult Biotech-supplied consumable, reagent or service, (b) transfer, or distribute any Hycult Biotech-supplied consumable, reagent or service, directly or indirectly, to any third party for any purpose or use, (c) use or allow anyone to use any Hycult Biotech-supplied consumable more than once, or (d) dilute or reverse engineer any Hycult Biotech-supplied reagent.
11. Product Improvements. Unless otherwise agreed to with Hycult Biotech in writing, Buyer hereby grants to Hycult Biotech a non-exclusive, worldwide, fully sublicensable, fully paid-up, royalty-free, irrevocable, perpetual license to all Product Improvements that may be made regarding HSE/RSE Products of Hycult Biotech. 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 packaging of reagents; (b) manual or automated assay techniques that may be used in connection with reagents; or (c) software analysis techniques relating to the extraction or storage of data generated using reagents. “Product Improvements” shall not include data generated using reagents or discoveries derived therefrom (except as expressly set forth in (a) – (c) above). Buyer need not disclose any Product Improvements to Hycult Biotech except as may be reasonably required to comply with the foregoing.
12. Confidentiality for Custom Products. If Buyer discloses to Hycult Biotech a confidential set requirements for which Buyer desires Hycult Biotech to design and manufacture custom reagents pursuant to these Terms and Conditions, Hycult Biotech agrees to use reasonable efforts not to disclose or use such confidential information disclosed to it by Buyer for any purpose other than designing and manufacturing such Products, supplying them to Buyer and/or other parties designated by Buyer, otherwise performing its obligations to Buyer (and any obligations Hycult Biotech may have to such other parties), and for other purposes authorized by Buyer. The provisions of this Section shall not apply to any information which (a) is known or used by Hycult Biotech prior to Buyer’s disclosure to Hycult Biotech; (b) is disclosed to Hycult Biotech by a third party under no obligation of confidentiality to Buyer; (c) is or becomes published or generally known to the public through no fault of Hycult Biotech; or (d) is independently developed without reference to such confidential information disclosed to Hycult Biotech by Buyer. Notwithstanding the foregoing, Hycult Biotech shall be permitted to disclose such information in order to comply with applicable laws, a court order, or governmental regulations, provided that Hycult Biotech has provided Buyer with prior notice of such disclosure, to the extent reasonably practicable. Hycult Biotech’s obligations under this Section shall terminate three (3) years following the date of disclosure.
13. Indemnification. Buyer agrees to indemnify Hycult Biotech and its employees, officers, directors, representatives, contractors and suppliers and hold each of them harmless from and against any losses, liabilities, demands, damages, costs and expenses, including without limitation reasonable legal fees and expenses, arising from or relating to the “products” or their use. Buyer agrees to fully cooperate with Hycult Biotech and its counsel in its defense and preparation for any such action or proceeding.
14. Liability Limitation. EXCEPT TO THE EXTENT CAUSED BY HYCULT BIOTECH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR REQUIRED BY APPLICABLE LAW, HYCULT BIOTECH 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 HYCULT BIOTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AS TO ANY HYCULT BIOTECH LIABILITY NOT LEGALLY SUBJECT TO THE FOREGOING, HYCULT BIOTECH’S LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO HYCULT BIOTECH 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.
15. 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 Hycult Biotech 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 Hycult Biotech and the applicable U.S. Government agency.
16. Unforeseen Events / Force Majeure. Hycult Biotech 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 Hycult Biotech. In the event of any such delay or failure in performance, Hycult Biotech shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances.
17. Miscellaneous. These Terms and Conditions constitute the entire agreement between Buyer and Hycult Biotech 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 Commonwealth of Pennsylvania, 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.