I. TAXES etc.
Any increase in any tax or governmental levy, duty or charge which increases the cost to Seller, Tosoh Bioscience LLC (“Tosoh”), of producing, selling, or delivering the products sold hereunder (the “Products”) or of procuring materials used therein, may, at Tosoh’s option, be added to the purchase price herein specified (the “Purchase Price”). With respect to sales outside the United States, all import duties, licenses and fees in the importing country of the Products shall be borne by Buyer.
Delivery of the Products shall be subject to receipt of cash or credit arrangements made by Buyer for the Purchase Price. If payment is not made in accordance with the terms thereof, or if Buyer’s credit standing has been impaired at any time, Tosoh may withhold delivery of any Products until satisfactory cash arrangements or credit arrangements have been made, and may demand in writing that Buyer provide adequate assurances of its ability to make payments under such terms. If Buyer fails to provide such written assurances within 15 days of Tosoh’s demand, Tosoh may pursue any remedies available to it at law or in equity.
III. RISK OF LOSS AND TITLE
Unless otherwise expressly stated otherwise elsewhere in this invoice, the Products shall be tendered for delivery, and all risk of loss or damage of all the Products shall pass to Buyer F.O.B. Tosoh’s designated facility. Title to and ownership of the Products shall remain with Tosoh until the Purchase Price has been paid in full.
IV. LIMITED EXPRESS WARRANTY
Tosoh warrants that at the time of delivery each Product conforms to the specifications thereof contained in the Certificate of Analysis (“COA”) or the Operating Conditions and Specifications (“OCS”) sheet, as relevant, as is provided together therewith; provided, however, that the foregoing warranty applies only if the Products have been properly handled, stored and used by Buyer. For Products which are equipment (the “Instruments”), Tosoh warrants that at the time of delivery and for one year following the date of installation of the Instrument, the Instrument shall conform to the product specifications expressly stated in the Instrument Manual in effect on the date of installation of the Instrument; provided, however, that the foregoing warranty applies only if the Instrument (i) has been properly operated under conditions recommended in the Instrument Manual, including any recommended maintenance procedures, and (ii) has not been subjected to misuse or abuse, or to damage or destruction due to improper environmental conditions. Buyer acknowledges that the conditions of use and application by Buyer or its customers of any Product and technical information provided in connection therewith (whether verbal, written or by product evaluation) are beyond Tosoh’s control. Buyer agrees that it shall test such Product and technical information to determine to its satisfaction whether they are suitable for the intended use and applications of Buyer or its customers. All technical information shall be given without warranty or representation. Buyer hereby assumes, and releases Tosoh from, all liabilities, in contract, tort or otherwise, incurred in connection with the use or application of any Product or technical information provided in connection therewith (whether verbal, written or by product evaluation), including but not limited to the use or application of any Instrument with non-Tosoh columns. THE WARRANTY STATED IN THIS PARAGRAPH AND THE PATENT WARRANTY CONTAINED IN PARAGRAPH V ARE GIVEN AND ACCEPTED IN LIEU OF ANY OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. SPECIFICALLY, TOSOH DOES NOT WARRANT THAT THE PRODUCTS WILL MEET BUYER’S OR ITS CUSTOMER’S REQUIREMENTS.
V. PATENT WARRANTY
Subject to the provisions of paragraph IV, for a period of three (3) years from the invoice date of a Product, Tosoh shall defend and indemnify Buyer against any suit, claim or proceeding brought against Buyer that is based on a claim that such Product in its original state constitutes an infringement of any United States patent owned by any third party issued as of the invoice date of the Product covering any composition-of-matter, if Buyer notifies Tosoh promptly in writing and gives Tosoh complete control of and authority for the defense and settlement of the same. If any such claim is made, Tosoh may, at its option in its sole discretion, (i) at Tosoh’s expense modify or replace the affected Product to eliminate the alleged infringement, (ii) at Tosoh’s expense procure for Buyer the right to use the asserted patent rights or (iii) refund the Purchase Price of the allegedly infringing Product. Notwithstanding the foregoing, Tosoh shall have no liability or responsibility for any claim resulting from (a) any product produced from a Product, (b) any combination of a Product with any other product, (c) any use or application of a Product, (d) any modification of a Product, or (e) any Product made in accordance with Buyer’s specifications or instructions. With respect to Products which are Instruments, subject to the provisions of paragraph IV, for a period of three (3) years from the invoice date of the Instrument, Tosoh shall defend and indemnify Buyer against any suit, claim or proceeding brought against Buyer that is based on a claim that the design or manufacture of the Instrument constitutes an infringement of any United States patent owned by any third party issued as of the invoice date of the Instrument, if Buyer notifies Tosoh promptly in writing and gives Tosoh complete control of and authority for the defense and settlement of the same. If any such claim is made, Tosoh may, at its option in its sole discretion, (i) at Tosoh’s expense modify or replace the affected Instrument to eliminate the alleged infringement, (ii) at Tosoh’s expense procure for Buyer the right to use the asserted patent rights or (iii) refund the Purchase Price of the allegedly infringing Instrument. Notwithstanding the foregoing, Tosoh shall have no liability or responsibility for any patent infringement claim resulting from (a) any product produced from or characterized by an Instrument, (b) any combination of the Instrument with any other product, including any incorporation of another product, software or technology into the Instrument, or any use of the Instrument in conjunction with another product, including use of the Instrument with non-Tosoh columns, (c) any use or application of an Instrument in a manner that is different from the conditions recommended in the Instrument Manual, (d) any modification of an Instrument made by other than Tosoh’s employees or authorized agents, or (e) any Instrument manufactured in accordance with Buyer’s specifications or instructions.
VI. MATERIAL SAFETY DATA SHEET etc.
Buyer shall be responsible for knowing all information and precautions disclosed in the material safety data sheets and other materials provided by Tosoh which set forth information concerning the Products and describe precautions to be taken in the storage, handling, use and operation of the Products and in the maintenance of the health and safety of persons exposed to the Products, the public and the environment with respect to the Products. Buyer shall also convey such information and precautions to the persons who may be exposed to the Products.
Within 30 days of receipt of a Product, Buyer shall inspect the Product by using the conditions stated in the OCS sheet or the QC documents, as relevant, as are provided in connection therewith and shall notify Tosoh if the Product does not conform to the specifications contained in the COA or the OCS sheet, as relevant. The failure to provide timely notice of any such failure to conform to specifications or any act by Buyer inconsistent with rejection or revocation of acceptance, including use or resale, shall constitute an unqualified acceptance of the Products. Subject to the preceding sentence and provided Buyer obtains Tosoh’s prior authorization, Tosoh shall accept any non-conforming Product for return at Tosoh’s expense. With respect to Instruments, failure by Buyer to notify Tosoh of any operational issue within five (5) days following installation shall constitute Buyer’s unqualified acceptance of the Instrument.
VIII. COMPLIANCE WITH LAWS
Buyer shall comply with all laws applicable to the handling, warehousing, use, sale or other disposal of the Products and the manufacture, use, sale, export or other disposal of products made using any Product and shall at its own expense obtain and maintain all regulatory and other necessary approvals from all relevant governmental or other authorities.
IX. LIMITATION OF REMEDY
Buyer’s exclusive remedy against Tosoh, and Tosoh’s total liability, for any claim, whether in contract, tort or otherwise, arising out of this transaction, or alleged to have resulted from an act or omission of Tosoh, whether negligent or otherwise, including without limitation any failure to deliver, delay in delivery, product contamination, product liability or breach of warranty, shall be the Purchase Price for the Products with respect to which such claim is made or, where appropriate and at the option of Tosoh in its sole discretion, to repair or replacement of such Product. Should warranty repair or service of the Instrument be necessary, it must be provided by Tosoh’s authorized repair and service personnel. Tosoh or its designated repair and service personnel shall provide all warranty service after installation during Tosoh’s normal working hours (8:00 am to 5:00 pm local time), Monday through Friday exclusive of Tosoh designated holidays, at no additional charge. Should Buyer desire service during after hours, Saturday, Sunday or a Tosoh designated holiday, Tosoh will attempt to provide such service, but Buyer shall be invoiced and must pay for any such labor and travel at Tosoh’s then effective overtime rates. Any required repair parts will be supplied at no charge, except for consumables used in completing such service. At Tosoh’s option, an Instrument may be exchanged or replaced rather than repaired on-site. Transportation charges for the return of any Product shall not be paid unless authorized in advance by Tosoh. IN NO EVENT SHALL TOSOH BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFIT OR LOSS OF USE AS A RESULT OF ANY CLAIM BY BUYER OR ANY ACT OR OMISSION OF TOSOH.
X. FORCE MAJEURE
If deliveries of the Products are prevented or delayed by reason of acts of God, war (declared or undeclared), act of the public enemy, embargo, blockade, riot, strike, labor disputes, lockout, fire, flood, earthquake, hurricane, tidal wave, epidemic, or quarantine, law, order, proclamation, regulation, ordinance, demand, action or inaction by any governmental instrumentality or any similar event beyond the reasonable control of Tosoh, deliveries of the Products shall be deemed suspended so long as any such cause prevents or delays them. If non-performance continues due to force majeure for 60 consecutive days, Tosoh shall have the right to cancel deliveries suspended without liability upon 30-day written notice to Buyer.
XI. GOVERNING LAW
The sale and purchase of the Products shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to what laws might otherwise govern under applicable principles of conflict of laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern the sale and purchase of Products hereunder.
Any dispute, controversy or difference arising out of or in relation to the sale or purchase of the Products shall be brought before the courts of the Commonwealth of Pennsylvania in Montgomery County or the United States District Court for the Eastern District of Pennsylvania located in Philadelphia, and the parties hereby consent to the exclusive jurisdiction of such courts and waive any contention that any such court is an improper venue for the resolution of such dispute, controversy or difference.
The failure of Tosoh to insist upon strict performance of any of the terms or provisions hereof shall not be construed as a waiver, to any extent, of its right to assert any such terms or provisions in the future.
The invalidity of any terms or provisions hereof shall not affect the validity of the remaining terms or provisions, and this invoice shall be construed as if such invalid terms or provisions had been omitted.
Any assignment of any of the rights or obligations of Buyer hereunder shall be void without prior written consent of Tosoh. Any transfer of the control or sale of all or substantially all the assets of Buyer shall be construed to be an assignment hereunder.
XVI. ENTIRE AGREEMENT etc.
The terms and conditions contained herein constitute the entire understanding of the parties with respect to the subject matter hereof. No modification or waiver of any of the terms and conditions hereof shall be of any force or effect unless made in writing and signed by the party claimed to be bound thereby. BY ORDERING FOR DELIVERY, PAYING FOR OR ACCEPTING ANY PRODUCT UNDER THIS INVOICE BUYER AGREES TO ALL THE TERMS AND CONDITIONS CONTAINED HEREIN.