Advanced Biotechnologies Inc (ABI) hereby offers for sale to the buyer named on the face hereof (Buyer) the products listed on the face hereof (Products) on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Buyer’s offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer’s document. Buyer’s receipt of Products or ABI’s commencement of the services provided hereunder will constitute Buyer’s acceptance of this Agreement. This is the complete and exclusive statement of the contract between ABI and Buyer with respect to Buyer’s purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by ABI and Buyer. ABI’s failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein.
Any tax, duty, custom, or other fee of any nature imposed upon or on account of this transaction by any foreign, U.S., state, or local governmental authority shall be paid by Buyer in addition to the prices quoted or invoiced by ABI.
Payment terms shall be net thirty (30) days after shipment by ABI. An interest charge equal to 1 1/2% per month will be added to invoices outstanding beyond thirty (30) days after shipment and Buyer shall reimburse ABI for any costs incurred by ABI in the collection of such outstanding invoices.
4. DELIVERY AND SHIPMENT:
All shipments are FOB point of shipment for domestic shipments and FCA Shipping Point (Incoterms 2012) for international shipments unless otherwise noted. ABI accepts no liability for any losses or for general, special, or consequential damages arising out of delays in delivery or shipment caused by circumstances beyond ABI’s reasonable control. Identification of goods to the contract shall occur at point of shipment, at which time risk of loss shall pass to Buyer. That is, ABI’s shipping responsibility ceases with safe delivery in good condition to the transportation company. For shipments outside the U.S. all duties, taxes, and shipping charges with respect to delivery of Products are the responsibility of the Buyer. ABI shall not bear any risk of loss once Products leave the ABI warehouse. ABI will fax or email copies of the shipping paperwork to the Buyer (or Buyer’s import agent), and will have no liability for failure to notify Buyer when product shipment has arrived at the Customs Office.
All shipping dates are approximate only, and ABI will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond ABI’s reasonable control. In the event of a delay due to any cause beyond ABI’s reasonable control, ABI reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay.
5. ALLOCATION OF GOODS:
If ABI is unable for any reason to supply the total demands for goods specified in Buyer’s order, ABI may allocate its available supply among any or all Buyers on such basis as ABI may deem fair and reasonable, without liability for any failure of performance that may result therefrom. ABI shall notify Buyer of the estimated supply available for Buyer.
Buyer shall inspect any goods shipped hereunder prior to acceptance and shall notify ABI in writing of any claims for shortages, defects or damages and shall hold the goods for Seller’s written instructions concerning disposition. If Buyer shall not have given ABI written notice within five (5) days after receipt by Buyer, such goods shall be deemed to conform to the terms and conditions hereof and to have been accepted by Buyer.
ABI warrants that its products are properly classified, described, packaged, marked, labeled, and in proper condition for transportation according to the U.S. Department of Transportation regulations and are of merchantable quality. THIS WARRANTY IS EXCLUSIVE, AND ABI MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF ANY PARTICULAR PURPOSE. This warranty does not cover goods which have been used for purposes other than for laboratory research use, or which have been subjected to misuse, abuse, neglect, alteration, accident, personal damages caused by failure to follow written instructions, if any, furnished by ABI, warnings and recommendations or damage inadvertently caused by the user.
ABI’s sole and exclusive liability and Buyer’s exclusive remedy with respect to defective or nonconforming products shall be the replacement of such goods without charge or refund of the purchase price upon the return of such goods in accordance with ABI’s instructions. ABI SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND.
8. BUYER’S USE OF PRODUCTS:
ABI’s products are intended for laboratory research purposes only and, unless otherwise indicated on the front of ABI’s invoice or on product labels, or unless otherwise agreed between ABI and Buyer in a separate written agreement, ABI’s products are not to be used for any other purposes, including but not limited to, for either in vitro diagnostic purposes or in foods, drugs, or cosmetics for humans or animals or for commercial purposes, which include, but are not limited to: research for new drugs or new drug discovery methods; research and development of products; use of ABI’s products to make inventions; use of ABI’s products to provide a service, information or data; use of ABI’s products in manufacturing, including use in quality control or quality assurance procedures.
Buyer acknowledges that the products have not been tested by ABI for safety and efficacy, unless otherwise stated in literature furnished to Buyer by ABI. Buyer expressly represents and warrants to ABI that Buyer will properly test, use, manufacture, and market any products purchased from ABI and any final articles made from them in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable foreign, U.S., and state food, drug, device, and cosmetic, and other relevant laws and regulations, now and hereinafter enacted. Buyer further warrants to ABI that any final articles manufactured from ABI’s products shall not be adulterated or misbranded within the meaning of the U.S. Federal Food, Drug, and Cosmetic Act.
Buyer realizes that because ABI’s products are intended for research use only, they may not be on the Toxic Substances Control Act (TSCA) inventory. Buyer assumes responsibility to assure that the products purchased from ABI are approved for use under TSCA, if applicable.
Buyer agrees to indemnify and hold ABI harmless from and against any and all losses, damages, and expenses (including’ attorneys’ fees and other costs of defending any action) that ABI may sustain or incur as a result of any claim by Buyer, its officers, agents, or employees, its successors and assigns, and its customers, whether direct or indirect, in connection with the use of ABI’s products, or by reason of Buyer’s failure to perform the obligations herein contained. Buyer shall notify ABI within fifteen (15) days of Buyer’s receipt of knowledge of any accident involving ABI’s products resulting in personal injury or damage to property, and Buyer shall fully cooperate with ABI in the investigation and determination of the cause of such accident and shall make available to ABI all statements, reports, and tests made by Buyer or made available to Buyer by others. The furnishing of such information to ABI and any investigation by ABI shall not constitute an assumption of any liability by ABI.
9. RETURN GOODS:
No products shipped under this contract shall be returned without the express prior authorization and shipping instructions of ABI. No returns will be authorized after sixty (60) days following shipment to Buyer. See also item (6.) Inspection and (7.) Warranties.
10. PATENT AND TRADEMARK DISCLAIMER:
ABI 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 or trademarks covering the product itself or the use thereof in combination with other products or in the operation of any process.
11. MODIFICATIONS, WAIVER, TERMINATION:
This contract may be modified and any breach hereunder may be waived only in writing signed by the party against whom enforcement is sought.
12. GOVERNING LAW:
This contract and terms and conditions shall be governed by and construed in accordance with the laws of the State of Maryland and the United States of America.