Terms + Conditions
BlazedX Product Purchase Terms and Conditions
1. Agreement. These Product Purchase Terms and Conditions (these“Terms”) govern the sale of products (“Products”) by BlazedX, Inc. (“Seller”)to a purchaser of the Products (“Purchaser”). These Terms, together withthe applicable Quote, Purchase Order, Seller’s Purchase OrderAcceptance and, if applicable, Supplemental Terms (all as defined below),(collectively with these Terms, this “Agreement”) comprise the entireagreement between the parties, and supersede all prior orcontemporaneous understandings, agreements, negotiations,representations and warranties, and communications, both written and oral.These Terms prevail over any of Purchaser’s general terms and conditionsof purchase regardless of whether or when Purchaser has submitted itspurchase order or such terms. Fulfillment of Purchaser’s order does notconstitute acceptance of any of Purchaser’s terms and conditions and doesnot serve to modify or amend these Terms.
2. Definitions. Additional defined terms are:
“Products" means all articles, materials, products, including RegulatedProducts and RUO Products, equipment, hardware or other articles to be furnished pursuant to an accepted Purchase Order.
“Purchase Order” means a written purchase order provided by Purchaser to Seller for the purchase of Products from Seller.
“Quote” means the quote provided by Seller to Purchaser for the purchase of Products from Seller.
“Regulated Products” means Products regulated by the U.S. Food andDrug Administration.
“RUO Products” means Products designated for Research Use Only.
“Seller’s Purchase Order Acceptance” means a written acceptance bySeller of a Purchaser’s Purchase Order.
“Specifications” means Seller’s specifications for a Product set forth onSeller’s website or in Seller’s product documentation.
“Supplemental Terms” means additional software licenses, limited use label licenses or other additional terms that apply to the Products and that are listed on the applicable Quote, Seller’s website, Product label, or in the documentation that accompanies the Product.
3. Price. Purchaser shall purchase the Products from Seller at the price(the “Price”) set forth in Seller’s Quote. Prices listed on any Quote are valid for 30 days, unless otherwise agreed to in writing by Seller. If there is no valid Quote or price listed on the applicable Quote, then the price will beSeller’s standard retail list price for said Products at the time Seller acceptsPurchaser’s Purchase Order. All Product prices are exclusive of all shipping and handling charges and any sales, value added, or other taxes and duties imposed with respect to the sale, delivery, or use of anyProducts and such items, if applicable, will be added to the invoice. If Purchaser claims any tax exemption, Purchaser must provide Seller with a valid, signed certificate or letter of exemption for each respective jurisdiction.
4. Cancellation. Purchase Orders cannot be cancelled or changed following Seller’s Purchase Order Acceptance without Seller’s written consent. Sellerwill use commercially reasonable efforts to accommodate Purchaser’s request to amend its Purchase Order to increase the quantity of Products.
5. Invoice and Payment. Seller will provide Purchaser with invoices upon shipment of Products. Invoices will contain the description of Products, quantities, shipping costs, and total price. Seller, in its discretion, may make partial shipments of Products and invoice each shipment separately.Purchaser shall make all payments hereunder in U.S. dollars by credit card, wire transfer or ACH transfer. All invoices are payable within 30 days ofSeller’s transmission of the invoice to Purchaser unless Seller has agreed otherwise in writing. Each Purchase Order is a separate transaction andPurchaser may not off-set payments from other Purchase Orders or other transactions with Seller. Any amount not paid when due will accrue interest until paid at the rate of 1.5% per month or the maximum amount allowed bylaw, whichever is less. Purchaser will be responsible for any reasonable costs of collection (including collection agency fees and attorneys’ fees)incurred by Seller. Where invoices for Products are not timely paid, subsequent shipments may be canceled or delayed or subject to prepayment until overdue amounts are paid. Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
6. Shipping. Seller will package the Products in containers designed to protect the Products from damage in the ordinary course of delivery.Shipment will be made (a) DAP (Incoterms 2020) where shipment is made by Seller’s carrier with title and risk of loss or damage to the Products transferred to Purchaser upon delivery of Products to Purchaser’s address, and (b) FCA (Incoterms 2020) at Seller’s shipping point where Seller agrees, in its sole discretion, to use Purchaser’s carrier with title and risk of loss or damage to the Products transferred to Purchaser as soon as theProducts are shipped (i.e., delivered into the custody of the carrier).
7. Inspection and Rejection of Nonconforming Products.
(a) Purchaser shall inspect the Products at the time of delivery. Purchaser will be deemed to have accepted the Products unless it notifies Seller in writing within five (5) days of delivery of any Nonconforming Products and furnishes such written evidence or other documentation as required bySeller. “Nonconforming Products” means only the following: (i) Product shipped is different than identified in Purchaser’s Purchase Order; or (ii)Product’s label or packaging incorrectly identifies its contents.
(b) If Purchaser timely notifies Seller of any Nonconforming Products,Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for suchNonconforming Products, together with any reasonable shipping and handling expenses incurred by Purchaser in connection therewith. If necessary, Purchaser shall ship, at its expense and risk of loss, theNonconforming Products to an address provided, in writing, by Seller. IfSeller exercises its option to replace Nonconforming Products, Seller shall, after receiving Purchaser’s shipment of Nonconforming Products, ship toPurchaser, at Purchaser’s expense and risk of loss, the replaced Products to Purchaser’s address.
(c) Purchaser acknowledges and agrees that the remedies set forth inSection 7(b) are Purchaser’s exclusive remedies for the delivery ofNonconforming Products. Except as provided under Section 7(b), all sales of Products to Purchaser are made on a one-way basis and Purchaser has no right to return Products purchased under this Agreement to Seller.
8. Limited Warranty for Consumables. Seller warrants to Purchaser thatProducts that are consumables will conform to the applicable Specifications for a period of the later of three (3) months from date of shipment or the expiration date on the Product, but in no event to exceed twelve (12) months from the date of shipment. For the avoidance of doubt, shelf-life or use-by information printed on the Products or product literature is provided for informational purposes only and is not deemed a period of warranty.
9. Limited Warranty for Instruments and Equipment. Seller warrants toPurchaser that Products that are equipment or instruments will conform to the applicable Specifications for a period of twelve (12) months from delivery.
10. No Other Warranties. Except for the limited warranties set forth inSection 8 and Section 9:
(a) SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(b) ALL THIRD-PARTY PRODUCTS, INCLUDING BUT NOT LIMITED TOALL RUO PRODUCTS, ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY-PRODUCT IS STRICTLY BETWEEN PURCHASER AND THE MANUFACTURER, DISTRIBUTOR, OWNER, OR CONTROLLER OFSUCH THIRD-PARTY PRODUCT. SELLER SPECIFICALLY DISCLAIMS,WITHOUT LIMITATION, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE OR PRACTICE. WITHOUT LIMITING THE FOREGOING, SELLER MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS OR RESULTS OF THE USE OF THE PRODUCTS WILL MEET PURCHASER’S OR ATHIRD-PARTY’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, OR BE COMPATIBLE OR WORK WITH ANY OTHER PRODUCTS,SERVICES, TECHNOLOGIES, INFORMATION, OR MATERIALS.
11. Warranty Remedies. If a Product fails to meet the applicable warranty,Seller will, at Seller’s election, repair or replace said Product with new or reconditioned Products or components, at Seller’s discretion and expense; provided, that Purchaser has first provided written notice to Seller with details of said failure and Seller is reasonably able to confirm said failure. The warranty period for any repaired or replaced Product will be the original applicable Product warranty. Any warranty claim must be submitted byPurchaser prior to the expiration of the applicable warranty period. At Seller’s request and expense, Purchaser will return ship the non-conforming Products.
12. Limitation of Liability.
(a) Seller is not responsible for damage to reagents or consumables, or for damages to Purchaser’s equipment caused by reagents or consumables.Seller is not responsible for any damage caused by Purchaser’s abuse, negligence, improper use storage or handling of the Products. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OFDATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL,INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT,TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OFTHE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.
13. Indemnification.
(a) Purchaser agrees to defend, indemnify and hold harmless Seller and its employees, directors, officers, independent contractors and agents (“Seller Indemnitees”) against and from any claims arising out of (a) Purchaser’s commercialization of any the Products, provided that such commercialization is contrary to the intended use of the Products; (b)Purchaser’s “off-label” use of the Products; (c) Purchaser’s negligence or misconduct in connection with this Agreement; (d) Purchaser’s misstatements about the intended or appropriate use of the Products, the effectiveness of the Products, or the regulatory approval status of theProducts; (e) Purchaser’s infringement, misappropriation or violation of any intellectual property or other proprietary rights of another person or entity in the use or commercialization of the Products; or (f) Purchaser’s violation of any law or regulation, including but not limited to United States Food andDrug Administration regulatory requirements.
(b) In the event of any such claim against Seller, or its Seller Indemnitees(individually, an “Indemnitee”), the indemnified party shall promptly notify the other party in writing of the claim for which indemnification is sought under this Section 13; provided, that failure to promptly notify Purchaser shall relieve Purchaser of any obligation to the Seller, and its Indemnitees, under this Section 13 solely to the extent prejudicial to the Purchaser’s ability to defend such action. Purchaser shall, at its sole expense, defend and control such claim with counsel of its own choosing; provided, however, that Seller, and its Indemnitees, may participate in the defense of such claim with their own counsel and at Purchaser’s expense. Seller, and its Indemnitees, shall reasonably cooperate with the Purchaser in the investigation or defense of any and all claims covered by this Section 12.Seller, and its Indemnitees, shall not settle any claim that is covered by thisSection 12 without the Purchaser’s prior written consent. Purchaser shall not settle such claim without the prior written consent of the Seller, and any other the indemnified party under this Agreement against which such claim was brought.
14. Compliance with Law. Purchaser shall comply with all applicable laws, regulations and ordinances, including but not limited to U.S. Food and DrugAdministration regulatory requirements. Purchaser shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs, if any, to carry out its obligations under this Agreement. Purchaser shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products byPurchaser.
15. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect toPurchaser, if Purchaser: (i) fails to pay any amount upon order when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; (iv) a change in control of thePurchaser; or (v) a breach or termination by the Purchaser of any other contract between the parties.
16. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller toPurchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing.Upon Seller’s request, Purchaser shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a nonconfidential basis from a third party.
18. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement(except for any obligations of Purchaser to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”)reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades that impact this Agreement ; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances. The Impacted Party shall give notice within 30(thirty) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
19. Assignment. Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent ofSeller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under this Agreement.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
22. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction)that would cause the application of the laws of any jurisdiction other than those of the State of California.
23. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the Superior Court of the State of California, County of San Diego, California, or the UnitedStates District Court for the Southern District of California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
24. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Quote or Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid),facsimile (with confirmation of transmission), certified or registered mail (in each case, return receipt requested, postage prepaid), or by electronic mailto such email addresses as may be used by the parties in the course of conduct between them. Except as otherwise provided in this Agreement, aNotice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
25. General. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or un-enforceability shall not affect any other term or provision of thisAgreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement is the final, complete, and exclusive statement of the understanding between the Seller and Purchaser with respect to the subject matter hereof. No terms, conditions, usages of trade, courses of dealing or agreements purporting to modify, vary, explain, or supplement this Agreement will be binding. This Agreement may not be waived, amended, or otherwise modified except by a writing signed by bothSeller and Purchaser. All rights and obligations of the parties set forth herein that expressly or by their nature survive the expiration or termination of this Agreement will continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement until they10are satisfied or by their nature expire, and will bind the parties and their legal representatives, successors, and permitted assigns.