Terms of Sale ― NovoHelix LLC
General Terms and Conditions of Sale
1. Acceptance of Terms
1.1 These are the terms and conditions (“Terms”) under which NovoHelix (“we”, “us”, or “NovoHelix”) sells our products to you, and they will govern all of your product orders and purchases from NovoHelix. Our offer to sell products is expressly conditioned upon your acceptance of these Terms. You will be deemed to have accepted these Terms unless you return the products you received to us unopened and unused in accordance with Section 3 of these Terms no later than 10 days after your receipt. Our failure to object to any terms and conditions contained in any purchase order or other document from you will neither be construed as our acceptance of such terms and conditions, or a waiver of these Terms. Use of the terms “you” or “your” in these Terms, as the context requires, means and includes the person or entity on whose behalf the products are being purchased (“End User”), and any third party that is duly authorized by such person or entity to make purchases of our products on their or its behalf (“Purchasing Agent”). Both End User and Purchasing Agent are fully responsible for compliance with these Terms, including without limitation the obligation to pay for products ordered hereunder. We reserve the right to reject any Purchasing Agent in our discretion.
1.2 These Terms, including all documents incorporated herein by reference, any quotation issued to you from us, and those specific terms of a purchase order or other document that are expressly agreed upon by us in writing, constitute the entire contract between us relating to the subject matter hereof (the “Contract”), and supersede all prior agreements and understandings between us, whether written or oral. Any additional or different terms and conditions, including without limitation any terms and conditions in your purchase order or any other document not agreed upon by us in writing, are hereby expressly rejected by us and will not apply. In the event of a conflict, any quotation issued to you from us takes precedence over these Terms, and a written contract covering the same subject matter signed by both of us takes precedence over both. If one or more of these Terms are held invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining Terms will be unimpaired.
2. Orders and Delivery
2.1 All orders are subject to our acceptance and availability of the products. Any changes that you may propose to the specifications, quantities, method of shipment, schedule or place of delivery of products must be provided to us in writing and may be accepted by us at our discretion. We reserve the right to make delivery in installments, which will be separately invoiced and paid for when due per invoice. We may make changes to product specifications that do not materially affect the quality or performance of the products.
2.2 All of our products are sold FCA our facility. 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 address the problem with the carrier. Title to products will pass to you upon our delivery of the products to the carrier.
3. Inspection and Returns
You can return products that are damaged or defective on delivery, or correct any shortages or delivery errors, if you contact Customer Service within 7 days from the day you receive the products. When you contact Customer Service, we will give you instructions on returning the products and on replacements; however, you must return any such products not later than 10 days after you first received them. If you do not contact us within the initial 7-day period, the products will be deemed accepted, but you will not lose any warranty rights. Authorization for all product returns must be approved by Customer Service and a returned material authorization number given to you prior to the return of products. Not all items will be authorized for return, due to temperature and packing requirements. We may require you to sign and deliver a properly completed certificate of decontamination prior to returning any product. Items authorized for return must arrive at our facilities in a state satisfactory for resale to be eligible for product credit.
4. Credits and Refunds
For any properly returned products, at our discretion, we may replace the products free of charge, issue a product credit or refund for the product value and shipping charges. No product credit will be available for use if a past due balance is outstanding on the account. Any product credit not used within six (6) months of the date of issue will expire.
5. Price, Taxes and Other Charges
If we do not provide you with a written quotation or if the price is not specified in a written contract between us, the price will be the list price that applies on the date we receive your order. Our prices are subject to change from time to time. 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.
Invoices shall be paid in U.S. dollars within 15 days from the invoice date. Each order is a separate transaction, and you may not set-off payments from one order against another. No delivery will be made until we receive your payment for an order. If we do not receive such payment within 7 days from the invoice date, without affecting our other rights, we have the right to cancel the order or Contract, suspend delivery or reject your future orders, and charge you a late-payment charge, from the due date until paid, at the rate of 1% per month (12% per year) or, if less, the maximum amount allowed by law.
7. Limited Warranty
7.1 Unless a different written warranty is included with product literature, we warrant to you that our products will conform to the technical specifications for such products as provided in our catalogues and literature accompanying the products until their respective expiration dates (if stated), or up to their respective number of uses as the case may be, or, three (3) months from the date of your receipt of such products, whichever is longer. THIS WARRANTY IS EXCLUSIVE, AND WE MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT, WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IF WE MANUFACTURE CUSTOM GOODS FOR YOU BASED ON INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS YOU PROVIDE TO US, WHETHER OR NOT SUCH INSTRUCTIONS, SPECIFICATIONS OR DIRECTIONS ARE BASED ON RESULTS OR MATERIALS GENERATED THROUGH TOOLS, FEATURES OR FUNCTIONALITY WE MAKE AVAILABLE TO YOU THROUGH OUR WEBSITES OR OTHERWISE, WE WILL NOT BE LIABLE FOR THE LACK OF SUFFICIENCY, FITNESS FOR PURPOSE OR QUALITY OF THE GOODS TO THE EXTENT ATTRIBUTABLE TO SUCH INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS.
7.2 Our warranty will not be effective if we determine that you have altered or misused the products or have failed to use or store them in accordance with our instructions, or if the defects to the products result from neglect or accident caused by you. Our sole and exclusive liability, and your exclusive remedy with respect to products returned within the warranty period and proved to our satisfaction (applying analytical methods reasonably selected by us) to be defective or nonconforming, will be the replacement of the products free of charge upon your return of the products in accordance with our instructions, although at our discretion we may provide a credit or refund in accordance with Section 4 above. Warranty claims must be made within 30 days after you discover that the product does not conform.
7.3 We do not support or make any warranties about products manufactured by third parties you purchased through one of our sales channels. Such products are subject to the warranties, if any, of their respective manufacturers to the extent they are transferable or otherwise available to our customers. You must look directly to the relevant third-party manufacturer for warranties and to make warranty claims.
7.4 Unless otherwise agreed, all technical assistance and information we provide to you regarding the products, including without limitation any recommended guide RNAs and sequences or other materials generated through your use of any tools, features or functionality we make available to you through our websites or otherwise, will be provided gratis, and you assume sole responsibility for results obtained in reliance thereon. We make no warranty regarding such technical assistance or information.
8. Product Use and Restrictions
8.1 Except as otherwise agreed in writing by our authorized representative, all products are for RESEARCH USE ONLY, AND NOT FOR HUMAN OR ANIMAL THERAPEUTIC OR DIAGNOSTIC USE. We do not submit our products for regulatory review by any government body or other organization, and we do not validate them for clinical, therapeutic or diagnostic use, or for safety and effectiveness. You are solely responsible for making sure that the way you use the products complies with applicable laws, regulations and governmental policies and for obtaining all necessary approvals, intellectual property rights, licenses and permissions that you may need related to your use. You represent and warrant to us that you will properly test, use, and, to the extent authorized, market any products purchased from us and any final articles made from them in accordance with the practices of a technically qualified individual and in strict compliance with all applicable governmental food, drug, device, and cosmetic requirements and other applicable governmental requirements, now and hereinafter enacted. Because our products are intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. You assume responsibility to assure that the products you purchase from us are approved for use under TSCA, if applicable.
8.2 It is solely your responsibility to make sure the products are suitable for your particular use and to conduct any research necessary to learn the hazards involved for any of your uses of products purchased from us. You also have the duty and to warn your customers, employees and any auxiliary personnel of any risks involved in using or handling the products. You agree to comply with instructions for use of the products furnished by us, if any, and not to misuse the products. If the products purchased from us are to be repackaged, relabeled or used as starting materials or components of other products, you will verify our assay of the products, qualify the products provided by us for such applications, and comply with all governmental requirements relating to labeling or providing other communications to customers. You acknowledge that we provide material Safety Data Sheets (SDSs) for our products, and that they are available electronically on our website at www.novohelix.com, or in paper copy by contacting NovoHelix, and that you are willing and able to access SDSs by these means.
8.3 You may not perform compositional, structural, functional or other analysis of our products, or undertake deconvolution or reverse engineering with respect to our products. Without limiting the foregoing restriction or any other use restrictions hereunder with respect to our products and your use of our products, you may not conduct a competitive analysis of our products or use our products in any manner in connection with the development or commercialization of a competitive service or product offering.
9. Limited Rights
9.1 You acknowledge and agree that all intellectual property rights in the products and in any NovoHelix technology, intellectual property and know-how used to make or useful for the manufacture or use of the products will at all times remain vested in NovoHelix and its licensors. Unless otherwise expressly agreed in writing by our authorized representative, your purchase of the products only grants you a limited, non-transferable right of NovoHelix intellectual property only to the extent required to use the quantity of the products that you have purchased from us for your internal research purposes only, and in compliance with the applicable intended use statement, limited use statement or limited label license, if any, in our current catalogue, website or on the label or other documentation accompanying the products (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety). No right to resell our products or any of their components is conveyed expressly, by implication, or by estoppel. Unless otherwise expressly agreed in writing by our authorized representative, we provide no rights to use our products in commercial applications of any kind, including, without limitation, manufacturing, quality control or commercial services such as reporting the results of your activities for a fee or other form of consideration. If you need commercial use rights to our products (including the right to perform fee-for-services), please contact NovoHelix’s Global Business Development department.
9.2 Unless explicitly stated, no license or immunity under any third party (non-NovoHelix) intellectual property is either granted or implied by the sale of any of our products. In particular, no licenses to third party intellectual property relating to CRISPR systems, methods, and compositions are provided. It is solely your responsibility to determine whether you may be required to obtain any additional or third party intellectual property rights depending upon the particular application in which you use the product, and to obtain such additional or third party intellectual property rights if required.
To the extent allowed by applicable law, and except where a claim arises as a result of NovoHelix’s gross negligence or willful misconduct or that of its affiliates, you will indemnify, defend and hold harmless NovoHelix, its officers, agents, employees, distributors and affiliates (“Indemnified Party”) for any claim, loss, damage, expense or other liability (including reasonable attorneys’ fees and costs) (“Losses”) which may be made against an Indemnified Party as a result of (a) your acts, omissions, use or modification of a product, (b) our manufacture or sale of a product we make under your instructions, specifications, or other directions (whether or not such instructions, specifications or other directions are based on results or materials generated through tools, features or functionality we make available to you through our websites or otherwise), (c) your failure to comply with the Contract, (d) your failure to acquire any applicable additional rights related to your use of the products, (e) your infringement of third-party intellectual property rights), or (f) our use of materials you provide to us. Any Purchasing Agent placing an order hereunder represents and warrants that it has the authority as End User’s agent to bind End User to these Terms and such order, and that all of Purchasing Agent’s actions related to these Terms and each order placed by such Purchasing Agent will be within the scope of such agency, and will indemnify, defend and hold harmless each Indemnified Party from Losses resulting from Purchasing Agent’s alleged breach of the foregoing representation and warranty.
11. Limitations of Liability
11.1 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, IS LIMITED TO THE AMOUNT YOU PAID TO US FOR THE PRODUCT PURCHASED.
11.2 DELIVERY DATES AND TIMES ARE ESTIMATES ONLY AND WE WILL NOT BE LIABLE (IN CONTRACT, TORT OR OTHERWISE) FOR ANY LOSSES, EXPENSES, CLAIMS OR DAMAGES CAUSED BY A LATE DELIVERY.
12. Export Control
You acknowledge that products received from us are subject to U.S. export control laws and regulations. You represent and warrant to us that you will not, directly or indirectly, (a) sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from us to any destination, entity, or person prohibited by the laws or regulations of the U.S., or (b) use the product for any use prohibited by the laws or regulations of the U.S. and/or your local jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
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. Our exercise of any option or failure to exercise any rights hereunder will not constitute a waiver of our rights to damages for breach of contract and will not constitute a waiver of any subsequent failure, delay, or breach by you. 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. Headings are for convenience only and will not be used in the interpretation of these Terms. The Contract will be governed by and construed in accordance with the laws of North Carolina, USA without regard to conflicts of law provisions. We may assign our rights and/or obligations under the Contract to any person in whole or in part. You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions received from us as a result of discussions, negotiations and other communications between us in relation to our products or services. 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.