- Acceptance. All sales are subject to and expressly conditioned upon the terms and conditions contained herein and upon buyer’s assent thereto. No variation of these terms and conditions will be binding upon seller unless agreed to in writing and signed by an officer or other authorized representative of Beagle Bioproducts, Inc.
- Changes. Orders arising hereunder may be changed or amended only by written agreement signed by both Buyer and Seller, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery. Buyer may not cancel this order unless such cancellation is expressly agreed to in writing by Seller. In such event, Seller will advise Buyer of the charge for such cancellation, and Buyer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, if any, costs of purchasing non-returnable materials, if any, and any other cost resulting from cancellation of this order by Buyer.
- Delivery, claims, delays. All sales are Free on Board (FOB) Seller’s shipping point unless otherwise noted. Shipping and Handling charges may include charges in addition to actual freight costs. Delivery of the goods to the carrier at Seller’s shipping point shall constitute delivery to Buyer and Buyer shall bear all risk of loss or damage in transit. Seller reserves the right to determine, in its discretion, the exact method of shipment.
Immediately upon Buyer’s receipt of any goods shipped hereunder, Buyer shall inspect the same and shall notify Seller 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 fail to so notify Seller within five days after the goods have been received by Buyer of any claim, such goods shall be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by Buyer.
Seller 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 Seller’s reasonable control, including but not limited to acts of Buyer, embargo or other governmental act, fire, explosion, accident, theft, vandalism, riots, acts of war, 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.
- Allocation of goods. If Seller is unable for any reason to supply the total demands for goods specified in Buyer’s order, Seller may allocate its supply among any or all Buyers on such basis as Seller may deem fair and practical, without liability for any failure of performance which may result therefrom.
- Payment. Terms of sale are net 30 days from date of invoice in the event Buyer has been extended credit terms by Seller, in Seller’s sole discretion. Otherwise, terms are payment in full in advance of shipment. In the event of default by Buyer in the payment of the purchase price or otherwise, of this or any other order, Seller, at its option, without prejudice to any other of Seller’s lawful remedies, may defer delivery, cancel this Contract, or sell any undelivered products on hand for the account of Buyer. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof.
- Taxes and other charges. 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 Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefore; or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
- Warranties. Seller warrants that its products shall conform to the description of such products as provided to Buyer by Seller through Sellers’ catalog, analytical data or other literature. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Seller’s warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that Buyer 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 Seller. Seller’s sole and exclusive liability and Buyer’s exclusive remedy with respect to products proved to Seller’s satisfaction to be defective or nonconforming shall be replacement of such products without charge or refund of the purchase price, as Seller my elect in Seller’s sole discretion, upon the return of such products in accordance with Seller’s instructions. SELLER 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 SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, LOSS OF PRODUCTS OF BUYER, ANY LIABILITY OF BUYER TO A THIRD PARTY 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 SELLER’S GROSS NEGLIGENCE. All claims must be brought within one (1) year of shipment, regardless of their nature.
- Buyer’s use of products. Seller’s products are intended primarily for research purposes and for use as reference standards, and, unless otherwise stated on product labels, in Seller’s catalog or in other literature furnished to Buyer, are not to be used for any other purposes. Buyer acknowledges that the products have not been tested by Seller for safety and efficacy in food, drug, cosmetic, commercial or any other use, unless otherwise stated in Seller’s literature furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will properly test, use, manufacture, and market any products purchased from Seller and/or materials produced with products purchased from Seller 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. Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from Seller. Buyer also has the duty to warn Buyer’s customers and any auxiliary personnel of any risks involved in using or handling the products. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the products and not misuse the products in any manner.
- Buyer’s representations and indemnity. Buyer represents and warrants that it shall use all products ordered herein in accordance with Paragraph No. 8 “Buyer’s Use of Products” and that any such use of products will not violate any law or regulation. Buyer agrees to indemnify and hold harmless Seller from and against any suits, losses, claims, demands, liabilities, costs and expenses (including reasonable attorney’s fees) that Seller may sustain or incur as a result of any claim against Seller arising out of, directly or indirectly, the use of Seller’s products, or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall notify Seller in writing within 15 days of Buyer’s receipt of knowledge of any accident, or incident involving Seller’s products which results in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.
- Returns. Goods may not be returned for credit except with Seller’s permission, and then only in strict compliance with Seller’s return shipment instructions. Certain items may not be returned for credit. Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.
- Technical Assistance. At Buyer’s request, Seller may, at Seller’s discretion, furnish technical assistance and information with respect to Seller’s products. SELLER 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 SELLER OR SELLER’S PERSONNEL.
- Miscellaneous. Seller’s failure to strictly enforce any term or condition or to exercise any right arising hereunder shall not constitute a waiver of Seller’s right to strictly enforce such terms or conditions or exercise such right thereafter. Seller’s rights and remedies are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.
- Governing Law. All disputes as to the legality, interpretation, application or performance of these terms and conditions shall be governed by the laws of the State of Ohio, without regard to conflict of law principles.