Effective: 28th September, 2023
vivoVerse, Inc. (“Seller”) hereby offers for sale to the buyer named in the order (“Buyer”) the products listed on the face thereof (or on an electronic acknowledgement) (the “Products”) on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein. The following Terms and Conditions of Sale are applicable to all products (the “Products”) offered between the Seller and the Buyer. The terms and conditions set forth herein supersede all prior negotiations and representations, if any, and no other representations by Seller or Seller’s agents shall be binding upon Seller except as specifically set forth hereinafter. Notwithstanding the foregoing, Seller reserves the right to make changes to these Terms and Conditions of Sale at any time by posting such changes here, and such changes shall apply to orders of Products made by Buyer thereafter. Seller’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.
All prices published by Seller or quoted by Seller’s representatives may be changed at any time without notice. All prices quoted by Seller or Seller’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller’s original price quotation. Any proposal or quotation issued by Seller does not constitute an offer to supply the Products.
TAXES AND OTHER CHARGES
Prices for the Products exclude all sales, value added, and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Buyer.
TERMS OF PAYMENT
Payment may be made by wire-transfer, ACH transfer, mailed check, or credit card (subject to 3% card processing fee). Buyer will submit the full amount specified on the final invoice to the Seller. All bank fees including transfer fees, currency conversion costs, and any applicable transaction taxes will be paid by the Buyer. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law.
DELIVERY, CANCELLATION OR RETURNS
a. Delivery. The Products will be shipped to the destination specified by Buyer, Carriage Paid To (CPT, as defined in Incoterms® 2020) Seller’s shipping point. All shipping dates are approximate only, and Seller 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 Seller’s reasonable control.
b. Cancellation. Orders in process may be canceled by Buyer only with Seller’s written consent and upon payment of Seller’s cancellation charges. Orders in process may not be changed by Buyer except with Seller’s written consent.
c. Returns. All returns, replacements, technical services and support shall be handled by Seller’s customer service organization as follows: Products described below may be returned to Seller within 30 days for replacement or adjustment. To assure prompt handling, Buyer must obtain a Return Merchandise Authorization Number (“RMA Number”) from Seller and reference this number on return shipping documents. Returns made without the RMA Number will be returned to Buyer, freight collect. Seller reserves the right to refuse any credit issued to Buyer if, upon return, such Product is determined by Seller not to be defective. Seller will grant full credit for: (i) Products not supplied in accordance with Buyer’s orders; and, (ii) Products which are defective at the time of receipt by the Buyer. Product returns for reasons other than defects deemed the responsibility of the Seller are subject to a 20% restocking charge. Seller will not grant credit for reagents, microfluidic chips, or consumables which have been opened.
TITLE AND RISK OF LOSS
Notwithstanding the trade terms indicated above, title to and risk of loss of the Products will pass to Buyer upon delivery of possession of the Products by Seller to the designated place of delivery; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Seller or the licensor(s) thereof, as the case may be.
Subject to the limitations set forth in these Terms and Conditions of Sale, Seller warrants (the “Limited Warranty”) that all Products sold by Seller will conform to the published specifications for such Product and shall be free from defects in materials and workmanship under normal use, handling, and storage. Except as otherwise stated, all products come with Seller’s standard 1-year limited parts and labor warranty. Extended warranties are available upon request and purchase. Seller makes only those warranties with respect to Product expressly identified as sold under warranty. All warranty claims must be made prior to one year from the date the Product is delivered to the buyer. Consumables and reagents e.g. microfluidic chips are explicitly excluded from the one year warranty, however those consumable products identified by the buyer as defective within 10 business days of receipt may be returned under an approved RMA.
Notwithstanding the foregoing, products supplied by seller that are obtained by seller from an original manufacturer or third-party supplier are not warranted by seller, but seller agrees to assign to buyer any warranty rights in such product that seller may have from the original manufacturer or third-party supplier, to the extent such assignment is allowed by such original manufacturer or third-party supplier.
In no event shall Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products, (vii) modification of any internal components, or (viii) use of the Products in combination with equipment or software not supplied by Seller.
With respect to any software products incorporated in or forming a part of the Products hereunder, Seller and Buyer intend and agree that such software products are being licensed and not sold. Notwithstanding anything to the contrary contained herein, Seller retains all rights and interest in software products provided hereunder.
Seller hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Buyer’s own internal purposes on the hardware products provided hereunder and to use the related documentation solely for Buyer’s own internal purposes. Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Buyer may not decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Seller’s prior written consent.
Certain of the software products provided by Seller may be owned by one or more third parties and licensed to Seller. Accordingly, Seller and Buyer agree that such third parties retain ownership of and title to such software products.
LIMITATION OF LIABILITY
VIVOVERSE, INC. SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LOSS BASED ON THE USE OF THE PRODUCT IN COMBINATION WITH OR INTEGRATED INTO ANY OTHER INSTRUMENT OR DEVICE. HOWEVER, IF VIVOVERSE, INC. IS HELD LIABLE, WHETHER DIRECTLY OR INDIRECTLY, FOR ANY LOSS OR DAMAGE ARISING UNDER OR RELATED TO THESE TERMS AND CONDITIONS OF SALE OR THE TRANSACTIONS HEREUNDER, REGARDLESS OF CAUSE OR ORIGIN, VIVOVERSE, INC’S TOTAL, CUMULATIVE LIABILITY SHALL NOT IN ANY CASE EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCT WHICH SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST VIVOVERSE, INC.
Buyer acknowledges that the Products obtained from Seller are subject to export or import laws, legislation, regulations and restrictions. These may include, the U.S. International Traffic in Arms Regulation, the U.S. Export Administration Regulations, and the Office of Foreign Assets Control Regulations. Buyer warrants that it, its subsidiaries and affiliates will not directly or indirectly export, re-export, transfer or release any Products or direct product thereof to any destination, person, entity or end use prohibited or restricted under applicable laws, regulations and legislation. This includes, but is not limited to, activities that are directly or indirectly related to the proliferation of nuclear, chemical or biological weapons, or military purposes, unless specifically authorized under all applicable export control laws and regulations. Buyer will defend, indemnify and hold vivoVerse, Inc. harmless for any damages or costs arising from Buyer’s failure to comply with these terms.
AUTHORIZED USE OF PRODUCTS
Products sold by Seller are intended solely for research use and are not to be used for any other purposes including, but not limited to, unauthorized commercial purposes (including Contract Research, diagnostics, or manufacture), military purposes, veterinary or clinical use. Buyer will (a) use reasonable care in using, handling, storing, transporting and disposing of the Products (including by wearing appropriate Personal Protective Equipment), and (b) ensure the Products are used and handled only by qualified laboratory personnel who have been trained to use the Products.
The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Texas, without reference to its choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Travis County, Texas, USA, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise.