TERMS AND CONDITIONS
PLEASE READ THIS DOCUMENT CAREFULLY AS IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
These Terms and Conditions of Sale (“AGREEMENT”) shall govern the sale to the purchaser (“CUSTOMER”) of assays, reagents, raw materials, antibodies, conjugates, instruments, software, and other products and related services (“PRODUCTS”) by United Immunoassay, Inc. (“UNIA”) named on the invoice or acknowledgement provided to CUSTOMER in connection therewith. The AGREEMENT shall replace and supersede any current or future purchase orders or similar forms that are not mutually signed by UNIA and CUSTOMER. Orders placed online, by fax, mail, phone, purchase order or otherwise, once accepted by UNIA, are not subject to cancellation or modification by CUSTOMER without UNIA’s written consent.
Prices exclude all insurance, freight, taxes, fees, duties and levies, which shall be payable by CUSTOMER. Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between UNIA and CUSTOMER shall be paid by CUSTOMER in addition to the prices quoted or invoiced. In the event UNIA is required to pay any such tax, fee or charge, CUSTOMER shall reimburse UNIA therefore or, in lieu of such payment, CUSTOMER shall provide UNIA at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
Prices are in United States Dollar currency unless otherwise noted and are subject to change without notice. If an order is placed without prior quotation and the pricing has changed, UNIA will make every effort to honor the listed price, but may at its sole discretion inform the CUSTOMER of the change in price. CUSTOMER may elect to cancel the order at the revised price and will receive a full cash refund without penalty.
UNIA will ship via carrier selected by UNIA or by CUSTOMER selected carrier at its sole discretion. Delivery dates set forth on a purchase order accepted by UNIA are non-binding and subject to change predicated on transport conditions existing at that time. UNIA does not guarantee any delivery dates and shall not be responsible for any loss or damage arising out of any delay in delivery irrespective of the cause of such delay. UNIA may make partial deliveries. All deliveries will be FCA / FOB our shipping point. Title and risk of loss or damage will pass to CUSTOMER upon delivery of the PRODUCTS to the carrier.
3. RETURNS, REJECTIONS and DAMAGED GOODS
Goods may not be returned for credit except with UNIA's permission, and then only in strict compliance with UNIA's return shipment instructions. Certain items may not be returned for credit. These items include: diagnostic reagents, refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders; products missing labels, parts, or instruction manuals; and books, computer software and equipment removed from their original packaging.
Any claims for damaged, missing or defective PRODUCT must be reported in writing to UNIA by CUSTOMER within five (5) business days from the date of receipt of PRODUCT. For any valid claim made, UNIA shall, at its sole discretion, either repair, replace or substitute (equivalent or greater value) the PRODUCT. The foregoing shall be CUSTOMER’s sole and exclusive remedy for damaged or missing PRODUCTS, and, except for express warranty rights, for defective PRODUCTS. Cash refunds for rejected PRODUCTS will incur a 25% restocking fee. Credit refunds will be issued at the sole discretion of UNIA without any penalty.
Immediately upon CUSTOMER’s receipt of any goods shipped hereunder, CUSTOMER shall inspect the same and shall notify UNIA in writing of any claims for shortages, defects or damages and shall hold the goods for UNIA’s written instructions concerning disposition. If CUSTOMER shall fail to so notify UNIA within five days after the goods have been received by CUSTOMER, such goods shall conclusively be deemed to conform to the Terms and Conditions hereof and to have been irrevocably accepted by the CUSTOMER.
UNIA shall 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 UNIA's reasonable control, including, without limitation, unsuccessful reactions, act of CUSTOMER’s, embargo or other governmental act, regulation or request affecting the conduct of UNIA's business, fire, explosion, 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.
CUSTOMER will be invoiced at the time of shipment of each PRODUCT. CUSTOMER 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 two (2%) percent per month, or the maximum allowed by law, whichever is less. Further shipment of PRODUCTS may be declined without advance notice if CUSTOMER fails to make any payment when due, or if the financial condition of CUSTOMER becomes unsatisfactory to UNIA. UNIA may elect to retain a security interest in all PRODUCTS sold to CUSTOMER to secure all of CUSTOMER’s obligations to UNIA under this AGREEMENT, and CUSTOMER will execute any documents necessary to create and perfect this interest. Sales by UNIA shipped outside the U.S. may require pre-payment as determined on a case by case basis.
5. LIMITED WARRANTY
UNIA warrants that its PRODUCTS shall conform to the description of such PRODUCTS as provided to CUSTOMER by UNIA through UNIA's catalog, analytical data or other literature. THIS WARRANTY IS EXCLUSIVE, AND UNIA MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. UNIA's warranties made in connection with this sale shall not be effective if UNIA has determined, in its sole discretion, that CUSTOMER has misused the products in any manner, has failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by UNIA.
UNIA's sole and exclusive liability and CUSTOMER's exclusive remedy with respect to products proved to UNIA's satisfaction to be defective or nonconforming shall be replacement of such PRODUCTS without charge or credit of the purchase price, in UNIA's sole discretion, upon the return of such products in accordance with UNIA's instructions. UNIA SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF UNIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF CUSTOMER OR OTHER USE OR ANY LIABILITY OF CUSTOMER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY UNIA'S GROSS NEGLIGENCE. All claims must be brought within three (3) months of shipment, regardless of their nature.
6. TECHNICAL ASSISTANCE
At CUSTOMER's request, UNIA may, at UNIA 's discretion, furnish technical assistance and information with respect to UNIA 's products. UNIA MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY UNIA OR UNIA 'S PERSONNEL. ANY SUGGESTIONS BY UNIA REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF SELLER.
7. PRODUCT USES
Products of UNIA, which are or may be drugs, food additives or diagnostic reagents, as described in the federal food, drug and cosmetic act, are for manufacturing or investigational purposes only in laboratory research animals or testing in vitro, and are not for drug, new drug, veterinary drug, food, food additive or human use. Unless otherwise indicated, all products are distributed and sold for chemical purposes only, not for drug use or for application to or ingestion by humans or for commercial horticulture use, for pesticide use, for application to or ingestion by animals or for veterinary drug use. All products sold by UNIA to CUSTOMER shall be used by qualified professionals only. The burden for safe use and handling of all products sold by UNIA to CUSTOMER is entirely the responsibility of CUSTOMER and anyone who purchases the goods from CUSTOMER and uses them. Absence of hazardous warnings does not imply nontoxicity. CUSTOMER expressly represents and warrants to UNIA that CUSTOMER will properly test, use, manufacture and market any products purchased from UNIA and/or materials produced with products purchased from UNAI in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. CUSTOMER further warrants to UNIA that any material produced with products from UNIA shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.
8. PATENT DISCLAIMER / INDEMNITY
UNIA does not warrant that the use or sale of the PRODUCTS delivered hereunder will not infringe the claims of any United States or other patents covering the use thereof in combination with other products or in the operation of any process. Additionally, CUSTOMER is required to indemnify UNIA from any legal action that may result from CUSTOMER’s use of a product manufactured by UNIA under this agreement.
9. CUSTOMER’S REPRESENTATION and INDEMITY
CUSTOMER represents and warrants that all PRODUCTS ordered herein in accordance with item 7, "PRODUCT USES", and that any such use of products will not violate any law or regulation. CUSTOMER agrees to indemnify and hold harmless UNIA, its employees, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that CUSTOMER may sustain or incur as a result of any claim against UNIA based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by CUSTOMER, its officers, agents, employees, successors or assigns, by CUSTOMER's subsequent customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, the use of UNIA's products, or by reason of Customer's failure to perform its obligations contained herein. Customer shall notify UNIA in writing within fifteen (15) days of CUSTOMER's receipt of knowledge of any accident, or incident involving UNIA's products which results in personal injury or damage to property, and CUSTOMER shall fully cooperate with UNIA in the investigation and determination of the cause of such accident and shall make available to UNIA all statements, reports and tests made by CUSTOMER or made available to UNIA by others. The furnishing of such information to UNIA and any investigation by UNIA of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by UNIA.
10. LIABILITY LIMITATION
EXCEPT TO THE EXTENT CAUSED BY UNIA’s GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR REQUIRED BY APPLICABLE LAW, UNIA 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 UNIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNIA’s AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO UNIA FOR THE PRODUCTS. CUSTOMER 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.
11. EXPORT CONTROLS
CUSTOMER 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. CUSTOMER will (a) comply strictly with all legal requirements established under these controls, (b) cooperate fully with UNIA 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 UNIA and the applicable U.S. Government agency.
Each party shall be and act as independent contractor and not as partner, employee, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. CUSTOMER may not assign its rights or obligations under this AGREEMENT without the consent of UNIA. UNIA may assign its rights and obligations hereunder without consent to an affiliate or to a successor to all or substantially all of UNIA’s business or assets. The failure of either party to enforce its rights under this AGREEMENT at any time for any period shall not be construed as a waiver of such rights. In the event that any provision of this AGREEMENT shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this AGREEMENT shall otherwise remain in full force and effect and enforceable. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California or Wyoming at UNIA’s sole discretion (without regard to the conflicts of law provisions thereof or the UN Convention on the International Sale of Goods). The sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in California or Wyoming selected at UNIA’s sole discretion (provided that UNIA may elect, at its option, to bring action in the courts for the location of CUSTOMER’s principal office) and CUSTOMER consents to the jurisdiction of such courts with respect to any such action. In any action or proceeding arising out of this AGREEMENT, the prevailing party will be entitled to recover costs and attorneys’ fees.