Terms and Conditions
Standard Terms and Conditions of Sale. United States sales only.
ALL SALES MADE BY COMBiNATI, INC. (“SELLER”) TO THE BUYER (“BUYER”) FOR COMBINATI PRODUCTS AND CONSUMABLES (EACH A “PRODUCT”) ARE EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY QUOTES ISSUED BY SELLER AND THE HOSTED SERVICES TERMS, IF APPLICABLE, (TOGETHER, THESE “TERMS AND CONDITIONS”). THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER AND SUPERSEDE ALL PREVIOUS NEGOTIATIONS, DISCUSSIONS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. SELLER WILL NOT BE BOUND BY ANY TERMS OF BUYER’S PURCHASE ORDER OR OTHER DOCUMENT THAT ARE ADDITIONAL OR INCONSISTENT WITH THESE TERMS AND CONDITIONS, AND ALL SUCH TERMS SHALL BE EXCLUDED. THESE TERMS AND CONDITIONS MAY ONLY BE AMENDED OR WAIVED BY A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
- Terms and Conditions. All purchase order acceptances shall be conditioned upon Buyer’s unqualified acceptance of these Terms and Conditions set forth herein, which may be made by written acceptance or by receipt by Buyer of delivery of any Products and failure to return such Products to Seller within thirty (30) days of delivery.
- Order and Acceptance. All orders for Products shall be made by written purchase order. All purchase orders will reference these Terms and Conditions. No order shall be binding upon Seller until accepted by Seller in writing, and Seller shall have no liability to Buyer with respect to purchase orders that are not accepted. Buyer shall submit purchase orders to Seller in accordance with Seller’s then current lead times.
- Delivery, Shipping, Risk of Loss. Seller will use reasonable efforts to deliver Products at the times specified in Seller’s acceptance of Buyer’s purchase order, provided, however, that all delivery dates are estimates only and deliveries may be in installments. All Products delivered hereunder will be suitably packed for shipment in Seller’s standard containers, marked for shipment to Buyer’s address specified in Buyer’s purchase order, and shipped FCA Seller’s facility or Seller’s fulfillment center (“Delivery Point”), at which time risk of loss from any casualty and title pass to Buyer. All freight, insurance and other shipping expenses from the Delivery Point will be borne by Buyer.
- Acceptance of Products. Buyer shall accept or reject Products within thirty (30) days after receipt for failure to substantially conform to Seller’s published specifications. If Buyer fails to notify Seller in writing of its rejection and reasons therefore within such period, Buyer will be conclusively deemed to have irrevocably accepted the Products, except as set forth in Section 14 below.
- Price. Prices for Products shall be the price set forth in the Seller-issued quote or Seller’s standard list price unless otherwise designated by Seller (“Purchase Price”). Seller has the right to revise Purchase Prices upon advance written notice to Buyer. Price changes will apply to all purchase orders received after the effective date of the price revision.
- Payment Terms. Payment terms shall be net thirty (30) days after the date of Seller’s Buyer will make payments in United States dollars by check or wire transfer to an account designated by Seller. Any invoiced amount not paid when due shall be subject to a service charge equal to the lesser of one percent (1%) per month or the maximum rate permitted by law. If Seller undertakes collection or enforcement efforts, Buyer shall be liable for all costs thereof, including attorney’s fees.
- Taxes. In addition to the Purchase Price, Buyer will be responsible for payment of all taxes (including without limitation, withholding, excise, sales, value-added, and use taxes) and customs duties paid or payable, however designated, levied, or based, but exclusive of taxes based on Seller’s net income, unless Buyer provides a certificate of tax exemption to Seller.
- Substitutions and Modifications. Seller will have the right to make substitutions and modifications in the specifications or composition of Products or protocols related to Products sold by Seller provided that such substitutions or modifications will not materially affect overall Product performance.
- End-User License. Seller hereby grants to Buyer a limited, non-exclusive, non-sublicensable license to use the Product in the country of sale in the manner described in the applicable user manual accompanying such Products (“User Manual”) for Buyer’s internal research and development and a limited, non-exclusive, non-sublicensable license to use any software included with the Product, solely in connection with such use. Buyer shall not translate, disassemble, decompile, reverse engineer or modify the software or make any copies of the operating software or any documentation provided by Seller, including but not limited to the instructions for use. The Products purchased hereunder are for Buyer’s own use and not for resale purposes. The limited end user license granted hereunder is not transferable except that it may be transferred together with the Products and associated documentation within the country of sale under Buyer’s normal course of business.
- Ownership, No Implied License. Seller retains all proprietary rights in and to all designs, engineering details, and other technology and information pertaining to the Products. Except for the limited software license granted above, the sale of Products ordered hereunder does not grant to, convey or confer upon Buyer or Buyer’s customers, or upon anyone claiming under Buyer, a license, express or implied, under any patent right, copyright, or other intellectual property right of Seller covering or relating to any use other than is consistent with the labeling or instructions for use thereof.
- Use Restrictions. Buyer shall be solely responsible for its use of the Products. The Products have not been approved, cleared, authorized or licensed by the United States Food and Drug Administration (“FDA”) or any other applicable governmental agency, within or outside the United States, for any use. The Products are for research use only. Buyer shall not use any Product in humans to treat or diagnose any condition nor for any other diagnostic or therapeutic purposes unless Buyer first obtains all necessary and/or appropriate approvals, clearances, authorizations and/or licenses from the FDA or other applicable governmental agency within or outside the United States. In any event, Buyer shall use all Products in accordance with applicable laws, rules, regulations and governmental policies and in accordance with these Terms and Conditions. Seller will not be responsible or liable for any losses, costs, expenses, or any other forms of liability arising out of Buyer’s use of the Products. By using any Product for any purpose, Buyer agrees to indemnify and hold Seller harmless for any and all damages and/or liability, however characterized, arising from such use of the Products. Buyer shall use the Products only for internal use and shall not sell, resell, transfer or distribute the Products to any third party. Buyer also agrees not to (and not to authorize or permit others to) reverse engineer, deconstruct or disassemble any Products. All Products shall be used by qualified professionals in accordance with the User Manual or other instructions or documentation provided by Seller in connection with the Products. The burden for safe use and handling of all Products is entirely the responsibility of Buyer.
- Confidentiality. “Confidential Information” shall include any information disclosed by Seller, or its agents, to the Buyer, and shall specifically include any patents and inventions, other intellectual property, sales, marketing, or customer lists. Confidential Information does not include any information that is publicly available or becomes publicly available through no breach of Buyer or its employees or agents. Buyer shall maintain the Confidential Information in strictest confidence and take all reasonable precautions to protect such information (including, without limitation, all precautions the Buyer employs with respect to its most confidential matters) and shall take all steps reasonably necessary to maintain the confidential nature of same.
- Limited Warranty. For Products purchased hereunder, Seller warrants to Buyer that the Products free from defects in workmanship and materials and conform to Seller’s published specifications in all material respects for twelve months from Seller’s receipt of Buyer’s purchase order. The warranties provided hereunder are contingent upon proper use and maintenance of the Products in accordance with the User Manual and does not apply to any Product that is subjected to unusual physical or electrical stress, misuse, neglect, improper installation, testing or storage, modification, used under improper protocol. Seller makes no warranty against any failure or defect, material or otherwise, of the Product related to, caused by, or exacerbated by any actions of Buyer, its employees, contracts or any other end user.
- Limited Remedy. Seller’s entire liability and Buyer’s exclusive remedy is limited to replacement of Products or refund of the Purchase Price, each at Seller’s sole option. Buyer agrees that to obtain any remedy (a) Buyer must promptly notify Seller in writing upon discovery that the Products failed to conform to these Terms and Conditions with a detailed explanation of any alleged deficiencies in accordance with Section 4 of these Terms and Conditions, (b) Buyer must return the Products to Seller, and (c) that an examination by Seller shall disclose that such alleged deficiencies actually exist and were not caused by accident, neglect, misuse, alteration by or of Buyer.
- Disclaimer of Warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, EXCEPT FOR THE LIMITED WARRANTY STATED IN SECTION 13, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND THE SELLER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. No oral or written information or advice given by Seller or its employees will create a warranty or in any way increase the scope of the limited warranties set forth herein, and Buyer may not rely on any such information or advice.
- Buyer Indemnification. Buyer shall defend, indemnify, and hold harmless Seller from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) in connection with any third party claims, suits, or proceedings arising out of or relating to the use of the Products, unless proximately caused by the sole gross negligence or willful misconduct of Seller.
- Limitation of Liability. To the extent permitted by applicable laws, Seller’s liability and Buyer’s remedies arising out of or related to sale of the Products, shall not exceed the Purchase Price paid by Buyer for the Products giving rise to such liability. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR BUSINESS OPPORTUNITIES OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR RELIANCE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Security Interest. Seller reserves a purchase money security interest in Products sold and the proceeds thereof, in the amount of the Purchase Price. In the event of default by Buyer in any of its obligations to Seller, Seller will have the right to repossess the Products sold hereunder without liability to Buyer. On request of Seller, Buyer will execute financing statements and other instruments that Seller may request to perfect Seller’s security interest.
- Miscellaneous. These Terms and Conditions contain the entire agreement and understanding between the parties on the subject of the sale of the Products. No representations or statements, other than those expressly set forth herein, were relied upon by the parties in entering into these Terms and Conditions. No modification or waiver of, addition to, or deletion from, these Terms and Conditions shall be effective unless reduced to writing and signed by duly authorized representatives of the parties hereto. The parties acknowledge that the broad applicability of the Products may make them useful in applications for which they were not expressly designed and which may involve dangers to human health or safety such as using Products for a purpose other than the one which such Products were intended. These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of California without reference to conflicts of law principles. Failure or delay by either party in exercising any right hereunder shall not operate as, or be deemed a waiver of such right or of any other right hereunder, except for violations which, after discussion and mutual agreement by the parties, are waived in writing. Except for payment obligations, neither party shall be liable for damages for any delay arising out of causes beyond their reasonable control, including without limitation acts of God, labor disputes, riots, wars, component shortages, epidemics, public health events or government measures taken in response to any of the foregoing. If any provision of these Terms and Conditions is held to be invalid or unenforceable, the remainder of these Terms and Conditions shall continue in full force and effect and will be interpreted to reflect the original intent of the parties