1.1. “Cover Page” means the cover page of this Agreement.
1.2. “Product” means each item listed on the Cover Page of this Agreement.
1.3. “Quotation” means the quotation document provided to Buyer by Nanopec authorized representative describing Products and prices associate with those Products and any corresponding services.
2. TERMS AND CONDITIONS
2.1. Terms and Conditions. These terms and conditions of sale (“Terms”) and any applicable licenses, notices, terms, conditions or use restrictions referred to in Section 3.1 below, together with any addenda to any of the foregoing provided by Nanopec, any other terms and conditions expressly agreed to in writing by an authorized Nanopec representative expressly referencing these Terms shall govern the sale and license of any Product(s) by Nanopec to the Buyer, and shall constitute the complete, exclusive and entire agreement between Nanopec and Buyer with respect to purchase and/or license of the Product(s) and any related services from Nanopec. Nanopec’s offer to sell Products and provide any related services is expressly limited to the terms of this Agreement. In the event of any conflict between the terms of the Quotation and these Terms, the terms of the Quotation shall take precedence. Buyer’s submission of a purchase order or other instrument for or regarding the purchase of Product(s) or related services from Nanopec, whether or not in response to a Nanopec quotation, shall be deemed an acceptance of and agreement to the terms of this Agreement to the exclusion of any other terms or conditions contained in and/or referenced by such purchase order or other instrument (except the name and identity of the Product(s) purchased, quantity, bill to and ship to address, and, if accurate, price), which are hereby deemed to be material alterations, and notice of objection to which is hereby given, notwithstanding anything to the contrary contained within such purchase order or other instrument or elsewhere. Any acceptance by Nanopec of any offer of Buyer as provided in any Buyer purchase order or other instrument is expressly conditioned upon Buyer’s assent to and acceptance of the terms of this Agreement to the exclusion of any terms or conditions in Buyer’s purchase order or other instrument that are in any way inconsistent with the terms of this Agreement.
2.2. Acceptance of Orders. No purchase order shall be binding upon Nanopec unless and until accepted by Nanopec in writing, and Nanopec shall have no liability or obligation to Buyer with respect to orders that are not accepted. No partial shipment of an order shall constitute the acceptance of the entire order, absent the written acceptance of such entire order.
2.3. Regulatory. THE PRODUCTS ARE NOT FOR USE IN DIAGNOSTIC, CLINICAL OR THERAPEUTIC PROCEDURES OR APPLICATIONS, AND IS FOR RESEARCH USE ONLY. Buyer acknowledges that the NANOPEC Technology has not received any governmental approval, clearance, or similar designation (“Approvals”), does not necessarily satisfy the requirements of any governmental body or other organization, and has not been validated for clinical or diagnostic use, for safety and effectiveness, or for any other specific use or application. Buyer is solely responsible for compliance with any and all applicable laws, rules and regulations, and governmental policies that pertain to its use of the Products, including, but not limited to, obtaining any necessary Approvals and conforming with any regional, territorial or other regulatory requirements, or the requirements or approvals of any Institutional Review Board. Buyer may not use the Products for, or in substitution of, medical advice, or to aid in diagnosis, treatment, or testing recommendations, or medical decision making of any kind.
2.4. Restrictions. Use of the Products is subject to the following restrictions: (a) Buyer shall not reverse engineer, disassemble, interrogate, or otherwise attempt to derive the method of manufacture or composition of the Products, or separate the contents of the Products or permit others to do any of the foregoing; and (b) Buyer shall not resell the Products.
2.5. Ownership. Nanopec reserves all rights not expressly granted to Buyer in this Agreement, and this Agreement does not grant Buyer a license under any Nanopec intellectual property rights, whether by implication or estoppel. As between the parties, Nanopec retains all worldwide right, title and interest in and to the intellectual property rights that cover the Products. Buyer shall not act in any manner inconsistent with such ownership. If Buyer suggests any new features, functionality, or improvement to the Products, Buyer grants Nanopec permission to use and incorporate such suggestions without compensation or restriction.
3. PRICE AND PAYMENT
3.1. Payment. Buyer will pay Nanopec the fees and charges as set forth on the Cover Page (the “Fees”). All Fees are exclusive of taxes, and Buyer shall be responsible for payment of any taxes. Unless set forth otherwise on the Cover Page, Nanopec will invoice Buyer for such Fees, and Buyer will pay invoices, within ninety (90) days of receipt. If Buyer does not pay amounts when due, then Nanopec may, without limiting its other available remedies, assess a monthly late payment charge of 2.5% or the highest amount permitted under applicable law (whichever is less) on the unpaid amount or, upon notice to Buyer, suspend its performance of this Agreement (including suspending delivery of Products). All payments are nonrefundable and non-creditable. Nanopec may from time to time require Buyer to accurately complete a self-audit questionnaire verifying Buyer’s compliance with the requirements of this Agreement, in which case Buyer will complete, certify as accurate, and deliver such questionnaire, all in accordance with Nanopec’s instructions.
3.2. Cancellation and Changes. Once Buyer has placed an order, Buyer cannot cancel it unless Nanopec consents in writing and Buyer pays any applicable cancellation charges. Buyer may not change orders in progress, except with Nanopec’s written consent and agreement as to appropriate adjustments to be made and the effect, if any, of such changes on the price and time of delivery, provided that when Buyer requires expedited service involving overtime, overtime charges will be added at Nanopec’s sole discretion to the price specified on the Cover Page or in an attached schedule.
3.3. Security Interest. Buyer hereby grants and Nanopec reserves a security interest in the Products for the purchase price of the Products. Upon Nanopec’s request, Buyer will sign any documentation necessary to perfect such security interest. Payment in full of the purchase price will release the security interest.
3.4. Delivery. Buyer will be responsible for shipping, handling, insurance, and other similar costs. Delivery of the goods to the carrier at Nanopec’s shipping point will constitute delivery to Buyer and Buyer will bear all risk of loss or damage in transit. Nanopec reserves the right to determine the exact method of shipment and the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Buyer of Buyer’s obligations to accept remaining deliveries. Immediately upon Buyer’s receipt of any goods shipped hereunder, Buyer will inspect the same and will notify Nanopec in writing of any claims for shortages, defects, or damages and will hold the goods for Nanopec’s written instructions concerning disposition. If Buyer will fail to so notify Nanopec within five days after the Products have been received by Buyer, such Products will conclusively be deemed accepted by Buyer, although Buyer will not lose any warranty rights. Nanopec will not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver, or otherwise perform hereunder due to any cause beyond Nanopec’s reasonable control, including, without limitation, unsuccessful reactions, acts of Nanopec, embargo or other governmental act, regulation or request affecting the conduct of Nanopec’s business, fire, explosion, recall, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
3.5. Inspection of Shipments. Any item must be inspected immediately for any visible outward damage before the delivery company leaves the premises. Any damages and exceptions must be noted on this form. The item must be inspected immediately for concealed damage. In the event of any damage, the original shipping container must be saved for the inspection. NANOPEC should be notified immediately of such damage. Failure to adhere to this policy will release NANOPEC from any responsibility regarding replacement and/or credit.
3.6. Damaged Items. If you have received damaged merchandise, please provide a photo of the damaged item with submission of Return Merchandise Authorization (RMA) form, showing damage, item packaging, interior, and exterior shipping box. Please hold all materials for carrier inspection until further notice.
3.7. Returns Good Policy Read, complete and sign the Return Merchandise Authorization Form (RMA) to obtain a return authorization code prior to returning any merchandise. You will be notified if your RAM has been approved. A request for return must be initiated within thirty (30) days of the receipt of the merchandise or return policy is voided. Nanopec Will Only Accept Returned Goods If Such Return Complies With The Provisions In This Policy. To ensure credit, returns must be pre-approved by Nanopec. Risk of loss on items to be returned does not pass to Nanopec until received. If Nanopec determines that the return is a result of customer error, such items must be returned at the expense of the customer with full re-stocking fee deducted from purchase price. Customer responsible for shipping and handling charges. Return products must be in unmarked and unused condition for full credit. All items must be returned in their original box and packed in a sufficient exterior box for return shipping, and include all accessories in the original shipment The following items may not be returned: 1) Refrigerated or sterile products may not be returned, even if they are unmarked, unopened or unused. 2) Made-to-order or specially ordered items (items not routinely stocked at Nanopec, or currently not sold by Nanopec.) may not be returned. Restocking Fee: Returns may be subject to a restocking fee of 25%.
4. GRANT BACK LICENSE
4.1. Buyer hereby grants to Nanopec, a nonexclusive, worldwide, all fields, unrestricted, royalty-free, fully paid-up, with right to grant sublicenses through multiple tiers, license to Product Improvement Patents. For this purpose, “Product Improvement Patents” means all patent rights (including similar rights like utility models) on inventions conceived or reduced to practice by or for Buyer that arise out of the use of Products and which relate to (a) use, development, design, manufacturing, layout or packaging of any Products, and/or the use of Products with Buyer’s or third party products; (b) interfaces between any Products and other devices, such as optical/detection systems, and robotics for use in connection with any Products; or (c) automated analysis techniques (e.g., computers, software) relating to the extraction of data from any Products and storing such data, for example, in a computer file or other storage media (such inventions, “Product Improvement Inventions”). Product Improvement Inventions shall not include data resulting from using Products (e.g., results of assays or sequencing using Products) or discoveries derived from such data (except to the extent covered by (a), (b) or (c) above). For purposes of this section, the term “Buyer” shall include all persons that Buyer permits to use the Products, irrespective of being legal employees of Buyer, and Buyer shall have the necessary agreements in effect with all such users and their employers to enable Buyer to comply with this section.
5. WARRANTIES AND DISCLAIMERS
5.1. Buyer’s Warranties. Buyer represents and warrants that (a) it has validly entered into this Agreement and has the legal power to do so, and (b) it will comply with all applicable local, state, national and international laws, treaties, rules, regulations and conventions in connection with its use of the Products.
5.2. Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NANOPEC MAKES NO WARRANTIES WITH RESPECT TO ANY MATTERS COVERED BY THIS AGREEMENT, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, ALL OF WHICH ARE HEREBY DISCLAIMED. BUYER ACKNOWLEDGES THAT NANOPEC HAS NO CONTROL OVER THE SPECIFIC CONDITIONS UNDER WHICH BUYER USES THE PRODUCTS, AND THAT NANOPEC CANNOT AND DOES NOT WARRANT RESULTS THAT MAY BE OBTAINED.
Buyer shall indemnify, defend and hold NANOPEC its respective officers, directors, employees and agents harmless from any and all losses, liabilities, damages, costs and expenses (including attorneys’ fees) directly or indirectly arising out of or relating to (i) Buyer's use of the Products; and (ii) Buyer’s noncompliance with applicable laws or breach of this Agreement.
7. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NANOPEC AND/OR ITS AFFILIATES BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, OR OTHER ECONOMIC LOSS, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF NANOPEC HAS BEEN ADVISED OF SUCH CLAIM. The aggregate and cumulative liability of NANOPEC to Buyer or any third party for all damages arising out of or relating to this Agreement shall in no event exceed the amount of Fees paid by Buyer to Nanopec under this Agreement.
8. GENERAL TERMS
8.1. Interpretation. All headings in this Agreement are included solely for convenient reference, and shall not affect its interpretation. If any provision of this Agreement is determined by a court to be invalid or unenforceable as drafted, that provision shall be severed and the enforceability of other provisions shall not be affected. This Agreement may be modified or amended only by a written agreement signed by both parties. The failure by a party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. This Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes any prior or separate agreements between the parties concerning the subject matter of this Agreement, and supersedes the terms of any Buyer purchase order, and such terms are rejected by the parties.
8.2. Notices. All notices and consents sent under this Agreement shall be in writing and: (a) hand delivered; (b) transmitted by fax; or (c) delivered by prepaid overnight courier. Notices shall be sent to the parties’ respective addresses as indicated on the cover page, attention: Legal Department, and shall be deemed received on the date of receipt.
8.3. Relationship of the Parties. The parties are independent contractors and nothing in this Agreement shall be construed as creating a partnership, joint venture or agency relationship between the parties, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other.
8.4. Force Majeure. Nanopec will be excused from performance and liability for any period during which and to the extent that it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control and without its fault or negligence.
8.5. Governing Law. The interpretation of this Agreement shall be governed by the laws of the State of Arizona without regard to its conflict of laws principles. The parties agree that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and federal courts of Pima County, Arizona.
8.6. Assignment. Neither this Agreement, nor any rights granted hereunder, may be sold, leased, assigned, or otherwise transferred, in whole or in part, by Buyer, and any such attempted assignment shall be void and of no effect without the advance written consent of Nanopec. This Agreement will inure to the benefit of and be binding upon any successors and permitted assigns of the parties.