Scope. The terms and conditions set forth herein (“Terms and Conditions”) are part of Biomatrica, Inc.’s, (“Biomatrica”) quotation for, and shall be the exclusive and binding agreement (“Agreement”) between Biomatrica and the purchaser (“Customer”) governing the sale of, any products sold by Biomatrica (“Products”) to Customer. Customer’s acceptance of these Terms and Conditions is a condition of Biomatrica’s acceptance of any order by Customer for Products, unless a subsequent, separate written agreement is entered into between Biomatrica and Customer either modifying these Terms and Conditions or setting forth different applicable terms and conditions. Any conflicting, amending and/or additional terms contained in any Customer purchase orders, invoices or similar documents are hereby rejected, and Biomatrica’s failure to object to any such terms when and each time presented shall not constitute a waiver by Biomatrica, nor constitute acceptance by Biomatrica of such terms and conditions.
Customer Purchase Orders. All Customer orders for Products (“Purchase Orders”) must be in writing. All Purchase Orders are subject to approval and acceptance by Biomatrica, which must be given in writing. Unless permitted in writing by Biomatrica, Customer shall not issue Purchase Orders for less than Biomatrica’s applicable minimum order quantity as set forth in Biomatrica’s current price lists. Requested lead times shall not be less than sixty (60) days, unless otherwise agreed by Biomatrica. Each Purchase Order shall be non-cancellable and binding on Customer upon Biomatrica’s acceptance. Biomatrica shall have the right in its sole discretion to accept or reject any requested changes to an accepted Purchase Order. All approved change orders shall be considered amendments to the applicable Purchase Order. If a requested change is not accepted by Biomatrica, the original Purchase Order shall remain in effect.
Pricing. Biomatrica shall publish pricing for Products from time to time. Pricing for Product orders will be at Biomatrica’s quoted or otherwise then-current prices for the quantities ordered. Product prices are exclusive of all packing and cartage costs; sales, use, excise or similar taxes; freight, duties, and applicable charges – each of which are the sole responsibility of, and will be paid by, the Customer. For international shipments, additional charges, including customs, duties and taxes will also be paid by the Customer.
Payment. Biomatrica shall submit an invoice to Customer upon shipment of Product. All invoices shall be due and payable within thirty (30) days of Customer’s receipt of such invoice. Any amounts not paid by Customer to Biomatrica when due will accrue interest at the rate of two percent (2%) per month, or the maximum amount allowed by law, if lower. Biomatrica may suspend all or any portion of future shipments of Products in the event Customer is delinquent in any of its payment obligations. Customer shall pay for all costs (including reasonable attorneys’ fees) incurred by Biomatrica in connection with the collection of late payments. The amount of any credit extended to Customer may be changed, or such credit withdrawn, by Biomatrica at any time. Each accepted Purchase Order is a separate, independent transaction, and Customer has no right of set-off against other Purchase Orders or other transactions with Biomatrica. All amounts payable by Customer hereunder will be made in United States Dollars. All insurance, transportation costs, import duties, sales and excise taxes, VAT and other taxes imposed by any government authority (and any related penalties or interest) imposed on any payment by Customer to Biomatrica, other than income taxes of Biomatrica, shall be the sole responsibility of Customer. With respect to taxes, if the buyer claims an exemption, buyer must provide a valid signed certificate or letter of exemption for each respective jurisdiction. Acceptance of any partial payment shall not constitute a waiver of Biomatrica’s right to payment in full of all amounts owing from Customer to Biomatrica.
Shipments and Delivery. All Product shipments shall be delivered EXW (Incoterms 2010) Biomatrica’s facility. Title to and the risk of loss or damage of Products shall pass to Customer at the time of Biomatrica's delivery according to EXW (Incoterms 2010). Biomatrica shall designate a carrier pursuant to Biomatrica's standard shipping practices unless otherwise specified in writing by Customer. Biomatrica shall have the right to deliver all Products covered hereby in a single lot or multiple lots.
Acceptance. Product shall be subject to inspection by Customer upon receipt. If Customer determines in good faith that any Product fails to conform to its applicable specifications published by Biomatrica (“Specifications”), then Customer may reject such Product and provide written notice to Biomatrica within five (5) business days after Customer’s receipt of such Product. If Biomatrica does not receive such notice of rejection within five (5) business days after Customer’s receipt of such Product, such Product shall be deemed accepted by Customer. Biomatrica may analyze any Products rejected by Customer for nonconformity. Any dispute regarding conformity with Specifications shall be submitted for tests and decision to an independent testing organization selected by Biomatrica. The determination of such testing organization shall be final and binding upon the parties and the fees of such testing organization shall be paid by the non-prevailing party in such dispute.
Warranties. Biomatrica represents and warrants to Customer that (i) at the time of delivery, all Product supplied hereunder shall comply with its Specifications; and (ii) title to all Product shall pass to Customer as provided herein, free and clear of any security interest, lien, or other encumbrance. EXCEPT AS PROVIDED IN THIS ARTICLE 7, BIOMATRICA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO THE PRODUCTS AND EXPRESSLY DISCLAIMS ANY SUCH ADDITIONAL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. Customer’s exclusive remedy, if any, under the above warranty is limited, at Biomatrica’s election, to any one of (a) replacement of any such Product; or (b) a refund of the amounts paid by Customer.
Limited Use Permitted. Customer shall use Products only to stabilize Customer material for Customer’s internal use, and for no other purpose. Customers holding a currently paid-up “commercial use” authorization from Biomatrica also may use Products to stabilize Customer material and sell or otherwise commercialize such stabilized Customer material during the term of such authorization. Resale of Products is strictly forbidden. Customer shall not modify, reverse engineer (including characterize, determine the structure of, determine the amino acid or nucleic acid sequence of), create copies or derivatives of, or otherwise change any Product or component thereof. Customer acknowledges that the Product is not approved for diagnostic purposes, or other purposes regulated by the United States FDA and comparable regulatory authorities outside the United States, and agrees that all Customer materials provided to any third party in a format that contains any quantities of Product shall be marketed and sold for research use only, and shall be clearly marked “For Research Use Only.” Customer agrees that it shall not file any patent application claiming the composition, manufacture or use of the Product, or any improvement thereof, without the express prior written consent of Biomatrica.
Biomatrica Intellectual Property. Except as explicitly set forth in paragraph 8 of this Agreement, no license, permission or other right is granted, either directly, indirectly or by implication, under any patent, trademark, service mark, copyright, mask work, trade secret, or other intellectual or industrial property or proprietary right owned or controlled by Biomatrica (“Biomatrica IP Rights”). Customer shall not challenge, contest or otherwise impair Biomatrica’s ownership of any Biomatrica IP Rights, or the validity or enforceability of any Biomatrica IP Rights. Biomatrica shall own, and Customer hereby assigns to Biomatrica, all right, title and interest in and to any and all data, inventions, discoveries or creations (and all tangible embodiments thereof), whether or not patentable, that are conceived, reduced to practice or otherwise created as a result of, or in connection with, any use a Product by Customer outside the limited uses explicitly set forth in paragraph 8 or use otherwise in violation of this Agreement. Customer acknowledges and agrees that the assignment of ownership in this paragraph shall be in addition to any additional remedies available under this Agreement or in law or equity for breach or violation of this Agreement.
Allocation of Risks. Customer shall use prudence and reasonable care in the use, handling, storage, transportation and disposition and containment of Products. In no event shall Products be introduced into humans. Customer shall indemnify, defend, and hold harmless Biomatrica from and against all liabilities, expenses, and costs (including reasonable attorneys’ fees and court costs) arising out of any claim, complaint, suit, proceeding, or cause of action to the extent caused by and attributable to (a) Customer’s promotion, distribution, sale, handling, possession, or use of the Products and/or Customer materials; or (b) negligent or intentionally wrongful acts or omissions of Customer.
Limitation of Remedies and Damages. IN NO EVENT WILL BIOMATRICA, ITS SUBCONTRACTORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION IS INDEPENDENT OF ANY REMEDY SET FORTH IN THIS AGREEMENT. IN NO EVENT WILL BIOMATRICA’S LIABILITY FOR ANY CAUSE OF ACTION RELATING TO THIS AGREEMENT EXCEED AMOUNTS RECEIVED AND RETAINED BY BIOMATRICA FROM CUSTOMER FOR THE PRODUCT THAT IS THE SUBJECT OF SUCH CLAIM OR DISPUTE. NO ACTION, REGARDLESS OF FORM, ARISING UNDER THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENTS WHICH GAVE RISE TO THE CAUSE OF ACTION.
Publicity. Customer agrees that Biomatrica may publicly identify Customer as a user of its Products. Except as expressly provided herein, Customer agrees not to disclose any financial terms of this Agreement to any third party without the consent of Biomatrica, except as is required by securities or other applicable laws, in which case Customer shall in a timely matter notify Biomatrica.
Export Control Laws. Biomatrica's obligations are subject to the United States export control laws. Customer acknowledges it is familiar with the United States export control laws and warrants that it shall not directly or indirectly export, transfer or in any way distribute any of the Products, or parts thereof, or any of the Biomatrica Intellectual Property without obtaining Biomatrica prior written approval and complying with Biomatrica’s export control procedures. Customer shall additionally comply with all United States export control laws if any Product is exported or re-exported.
Entire Agreement. This Agreement shall exclusively govern the supply of Products hereunder and contains the entire agreement between the parties with respect to the subject matter contained herein and supersedes any previous understandings, representations, writings, negotiations commitments or agreements, oral or written with respect thereto which are hereby rejected and shall be null and void. This Agreement may not be amended for any other reason without the prior written agreement of Biomatrica.
Governing Law. This Agreement shall be governed by and construed under California law, without application of its conflicts or choice of law rules. Customer and Biomatrica irrevocably submit to the exclusive jurisdiction of the state and federal courts located in San Diego, California for any action or proceeding regarding this Agreement, and Customer irrevocably waives any right to object to the exclusive jurisdiction or venue of the courts in San Diego, California.
Force Majeure. Nonperformance of either party (except for payment obligations) shall be excused to the extent that performance is rendered impossible by strike, fire, earthquake, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of, and not caused by the negligence of, the nonperforming party.
Relationship of the Parties. The relationship of Customer and Biomatrica established by this Agreement is that of independent contractors. Nothing in this Agreement shall be construed to create any other relationship between Customer and Biomatrica. Neither party shall have any right, power, or authority to assume, create or incur any expense, liability, or obligation, express or implied, on behalf of the other.
Notices. Any notice required or permitted to be given to the parties hereto shall be deemed to have been properly given if delivered in person or when received if mailed by first-class certified mail to the other party at the appropriate address as set forth in each such party’s prior correspondence or to such other addresses as may be designated in writing by the parties from time to time during the term of this Agreement.
Miscellaneous Terms. Customer shall not assign or transfer all or any part of its rights under this Agreement without the prior written consent of Biomatrica; Biomatrica may assign this Agreement to an entity that acquires all or substantially all of Biomatrica's assets or business to which this Agreement relates. No waiver, or failure to assert any right or remedy hereunder, by Biomatrica with respect to any breach or default, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right to remedy, unless such waiver is expressed in writing and signed by the party to be bound. If a dispute arises regarding this Agreement or the Products, the prevailing party shall be entitled to actual attorneys’ fees and costs incurred, in addition to the other relief to which it is entitled. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid or unenforceable, the remaining provisions shall remain in full force and effect. Each term and condition under this Agreement will remain effective for so long as may be necessary to give effect to its purpose.