1. Acceptance. The offer to sell product(s) and/or provide services by Epigentek Group Inc. ("Epigentek") to the entity receiving or intending to receive transactional deliverables ("Client") is expressly conditioned upon Client's acceptance of these terms and conditions. Any of the following constitutes Client's unqualified acceptance of these terms and conditions: (a) written acknowledgement of these terms and conditions; (b) issuance or assignment of a purchase order for the product(s) or services, (c) acceptance of any shipment or delivery of product(s) or provision of services, (d) payment for any of the product(s); or (e) any other act or expression of acceptance by Client. THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL SUPERSEDE ANY CONFLICTING TERMS CONTAINED ON CLIENT'S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY CLIENT UNLESS EXPRESSLY AGREED TO IN WRITING BY EPIGENTEK.
2. Prices, Taxes and Payment. Epigentek reserves the right to change prices and specifications of its products or services at any time without notice, unless otherwise explicitly specified in a written customer quote issued by Epigentek. Any tax, duty, custom or other fees of any nature imposed upon this transaction by any governmental or legally authoritative body shall be paid by Client in addition to the price quoted or invoiced. In the event Epigentek is required to prepay any such tax, Client will fully reimburse Epigentek for such tax prepayment. Non-credit card payment terms shall be net 30 days after shipment by Epigentek, unless otherwise an alternate term is mutually agreed upon in advance. Payment made by Credit Card must be made at time of order placement by Client and is limited to orders with a total order value equal to or less than six thousand US dollars ($6,000 USD). Any credit card charges of three thousand US dollars ($3,000) or more may be subject to a credit card processing fee. Any refunds issued to credit cards due to non-technical reasons of no fault of Epigentek is subject to a bank-mandated credit card refund fee. Epigentek reserves the right to charge a late fee to invoices outstanding beyond the allowable credit term period after shipment. Interest on all sums due and unpaid after due date shall run at the maximum rate permitted by applicable law until payment is received. In addition, Epigentek reserves the right to require C.O.D. payment or prepayment terms from any Client whose account is overdue for a period of more than 60 days or who has an unsatisfactory credit or payment record, as determined by Epigentek in its sole discretion. Any unsatisfactory history of timely payments may result in EpiGentek's revision of payment terms at its sole discreton to include additional processing fees, prepayment, or shorter payment deadlines. Epigentek may also refuse to sell to Client until each overdue account of Client and all of its affiliates are paid in full. Client is responsible for all of Epigentek's collection costs on Client's past due accounts.
3. Delivery and Shipment. Epigentek will make every effort to ship the products or provide the services hereunder in accordance with the requested delivery date, provided that Epigentek accepts no liability for any losses or for damages arising out of delays in delivery. All delivery dates are estimates and the time of delivery shall not be of the essence. Epigentek shall be entitled to deliver the products in installments. By placing an order, Client acknowledges responsibility and capability for any customs clearance or brokerage processes. Shipment of all products shall be Free Carrier (FCA) point of distribution by Epigentek (INCOTERMS 2010); Epigentek shall not be held responsible for any Client's delay in customs clearance -- any relevant invoices will remaind valid; identification of the products shall occur when they leave Epigentek's point of distribution, at which time title and risk of loss shall pass to Client. Except as otherwise agreed, method of transportation will be per Epigentek's policy. All shipment costs shall be paid by Client and if prepaid by Epigentek, the amount thereof shall be reimbursed to Epigentek. Products shipped with dry ice are subject to a handling charge, which is prepaid by Epigentek and added to the invoice. A $15 address correction fee will be charged to the Client in the event that the carrier charges such a fee to Epigentek as a result of an incorrect address provided by Client.
4. Custom Made Products. Epigentek may define a certain product as a Custom Made Product ("CMP"). Client must provide Epigentek with product specifications prior to the start of manufacturing a CMP. Epigentek and Client shall agree to all production and testing techniques prior to the start of manufacturing a CMP. Client must provide a Purchase Order detailing product and delivery schedule for reserved product. Client shall purchase the entire lot of the CMP without regard to volume. Purchase Orders for CMPs cannot be cancelled.
5. Inspection. Client shall be responsible for inspecting all products shipped hereunder prior to acceptance, provided, that if Client shall not have given Epigentek written notice of rejection fully specifying and documenting the reasons thereof within 3 business days following delivery to Client, the products shall be deemed to have been accepted by Client. Epigentek may, on Client's premises, elect to inspect any hazardous products claimed not to conform.
6. Epigentek's Standard Warranty and Limitation of Liability. Epigentek warrants that its products will meet their applicable published specifications when used in accordance with their applicable instructions for the expressly stated duration of the product. This warranty does not extend to any product which has been subjected to misuse, neglect, or to use in violation of instructions furnished by Epigentek. Additionally, due to the storage sensitivity and special handling conditions of the products, this warranty does not extend beyond 100 kilometers (62 miles) from the place of original delivery unless authorization is provided by Epigentek in advance.
Epigentek MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. The warranty provided herein and the data, specifications and descriptions of Epigentek products appearing in Epigentek's published catalogues and product literature may not be altered except by express written agreement signed by an officer of Epigentek. Representations, oral or written, which are inconsistent with this warranty or such publications are not authorized and if given, should not be relied upon.
In the event of a breach of the foregoing product warranty, Epigentek's sole obligation shall be to repair or replace, at its option, the applicable product or part thereof, provided the Client notifies Epigentek promptly of any such breach. Claims of non-performance or technical problems for products received by Client shall not constitute breach of product warranty unless proven with data evidence resulting from such products. In the event that an invoice is due prior to such data evidence is provided and confirmed to be valid by Epigentek under reasonably accepted standards by the general scientific community, the debt for said invoice shall remain valid and payable to Epigentek. If after exercising reasonable efforts, Epigentek is unable to repair or replace the product or part, then Epigentek shall refund or credit to the Client all monies paid for such applicable product or part.
Epigentek warrants that it shall provide services in a professional and workmanlike manner and that it will attempt in good faith to perform the services to Client's reasonable satisfaction. Epigentek MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED. If Epigentek breaches this warranty, then Client shall be entitled to a service credit of up to the amount paid for such services, for use towards either a repeat performance of such services or towards other services. Such credit may not be applied towards tangible products. The above represents Client's sole remedy for breach of this services warranty.
Client assumes all risk and liability for loss, damage or injury to persons or to property of Client or others arising out of the presence or use of the products or Epigentek's provision of services. Except as expressly provided otherwise herein, Epigentek shall not indemnify nor be liable to Client, Client's customers, successors, or to any person or entity for any claims, damages or losses arising out of the sale or use of products or the provision of services, where liability is premised upon any theory including, but not limited to, warranty, negligence or strict liability. EPIGENTEK SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, LOSS OF REVENUE OR PROFITS, OR ANY LIABILITY OF CLIENT TO A THIRD PARTY. THE TOTAL LIABILITY OF EPIGENTEK UNDER THESE TERMS AND CONDITIONS OF SALE SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES INVOLVED. All claims must be brought within one (1) year of delivery, regardless of their nature.
7. Authorized Use. CLIENT ACKNOWLEDGES THAT THERE MAY BE HAZARDS ASSOCIATED WITH THE USE OF THE PRODUCTS, THAT IT UNDERSTANDS SUCH HAZARDS, AND THAT IT IS THE RESPONSIBILITY OF CLIENT TO WARN AND PROTECT ALL THOSE EXPOSED TO SUCH HAZARDS.
The purchase of Epigentek products conveys to Client a non-transferable right to use the purchased product(s) in compliance with the intended use statement listed on the product data or product information that accompanies each product. Each product also may be accompanied by limited use information or limited use label licenses. Unless otherwise expressly stated in product data or product documentation sheets, Epigentek products have not been tested for safety or efficacy. In the event of resale of product by Client, and where Epigentek has affixed warnings on the exterior of potentially dangerous products, Client is prohibited from changing, deleting, or obscuring such warnings in any way unless Client shall suitably reproduce the same warnings on the packaging. The foregoing shall not preclude Client from adding any additional warnings or disclaimers as may be appropriate and/or required by law as a condition to Client's resale or use of the products. As stated in the documentation accompanying the product(s), certain products are intended for research use only and are not to be used for any other purpose, which includes but is not limited to, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses or any type of consumption or application to humans or animals.
Client shall at all times be solely responsible for: obtaining any necessary intellectual property permission, compliance with any and all applicable regulatory requirements, and conducting all necessary testing prior to use of product(s) purchased from Epigentek.
Client shall indemnify and hold Epigentek and its corporate affiliates including any entity under majority control of Epigentek, agents, employees, and representatives, harmless from and against any and all claims, damages, losses, costs or expenses (including attorney's fees), arising in connection with Client's sale or use of the products, including Client's breach of the covenants and representations contained in these Terms and Conditions of Sale, or arising from the negligence, recklessness or misconduct of Client.
8. Returned Goods. Client may not cancel any order without Epigentek's written consent. No products shipped under this contract may be returned without the express prior written authorization of Epigentek and all products must be returned with Epigentek's approved Return Merchnadise Authorization ("RMA") number. Returns must be received within 10 days of RMA issuance, unless otherwise instructed. Title to the returned products shall pass to Epigentek upon delivery of the products to Epigentek's facilities. The products shall be returned in their original containers with the original Epigentek label affixed and unaltered in form and content. Where applicable, Client agrees to provide Epigentek with interim product temperature and other appropriate storage documentation and to package products with proper refrigerant to maintain required temperatures during transit. All product returns may be subject to a restocking charge or bank-mandated credit card return fee (see "Refund Policy" information). No returns will be authorized after 7 days following delivery to Client. Products subject to FDA or other governmental regulation and/or cGMP processing requirements are not eligible for cancellation or return.
9. Technical Advice. Epigentek may, at Client's request, furnish technical assistance, advice and information with respect to the products, if and to the extent that such advice, assistance or information is conveniently available. It is expressly agreed, however, that Epigentek is under no obligation to provide such technical assistance and/or information. To the extent that such technical assistance and/or information is provided to Client, the disclaimers and limitations of liability contained herein shall be applicable.
10. Product Reviews. Epigentek reserves the right to reject or remove objectionable Client-submitted product reviews at its sole discretion. If approved, the review shall appear in its entirety and Epigentek will not edit out any content. Epigentek reserves the right to encourage retraction of negative reviews by Client by attempting to resolve or make amends for any relevant complaints or grievances. By submitting a review, Client grants Epigentek a non-exclusive, royalty-free, perpetual and irrevocable right to use, reproduce and modify, as Epigentek deems necessary, such reviews on the Epigentek.com website and in other marketing materials. Client represents and warrants that Client owns and controls all of the rights to the content of the review submitted, that the content is truthful and accurate to the best of Client's knowledge and belief, and Client agrees to indemnify and hold harmless Epigentek and its directors, offiers, and employees from any resulting liability. Epigentek takes no responsibility and assumes no liability for any content posted by Client or any third party.
11. Agent Representation. No agent, employee or other representative has the right to modify or expand Epigentek's standard warranty applicable to the products or services to make any representations as to the products other than those set forth in Epigentek's product literature and any such affirmation, representation or warranty, if made, should not be relied upon by Client and shall not form a part of this contract.
12. Non-Assignment. Orders are not assignable or transferable, in whole or in part, without the express written consent of Epigentek.
13. Typographical Errors. Stenographical, clerical or computer errors on the face of any Epigentek invoice shall be subject to correction by Epigentek.
14. Third Parties. Nothing in this document is intended to create any rights in third parties against Epigentek.
15. Fair Labor Standards. Epigentek represents that the products or services provided hereunder were produced and/or performed in compliance with the requirements of all sections of the Fair Labor Standard Act of 1938, as amended.
16. Modifications, Waiver of Breach. This contract may be modified and any breach hereunder may be waived only by a writing signed by the party against whom enforcement thereof is sought. The waiver by either party at any time to require performance by the other of any provision of these Terms and Conditions shall not operate as a waiver of such provision at any other time.
17. Governing Law. This contract shall be governed by and construed in accordance with the laws (other than those relating to conflict of laws questions) of the State of New York.
18. Arbitration. Any and all disputes or controversies arising under, out of or in connection with this contract or the sale or performance of the products or services, except for collection matters, shall be resolved by final and binding arbitration in Farmingdale, New York under the rules of the American Arbitration Association then obtaining. The arbitrators shall have no power to add to, subtract from or modify any of the terms or conditions of this contract. Any award rendered in such arbitration may be enforced by either party in either the courts of the State of New York or in the United States District Court for the Suffolk COunty District Court in Central Islip, New York to whose jurisdiction for such purposes Epigentek and Client each hereby irrevocably consents and submits.
19. Foreign Corrupt Practices Act. Client acknowledges that Epigentek is a United States corporation and, as such, is subject to the provisions of the Foreign Corrupt Practices Act of 1977 of the United States of America, 91 Statutes at Large, Sections 1495 et seq., which prohibits the making of corrupt payments (the "FCPA"). Under the FCPA, it is unlawful to pay or to offer to pay anything of value to foreign government officials, or employees, or political parties or candidates, or to persons or entities who will offer or give such payments to any of the foregoing in order to obtain or retain business or to secure an improper commercial advantage. Client further acknowledges that it is familiar with the provisions of the FCPA and hereby agrees that it shall take or permit no action which will either constitute a violation under, or cause Epigentek to be in violation of, the provisions of the FCPA.
20. Export Restrictions. Client acknowledges that the merchandise covered by this contract is subject to the export control laws of the country from which shipment is made, as well as possibly those of the United States. Client further acknowledges that, depending on the product, its country of destination, its end use, and the identity of the parties to the transaction, such laws may require Client, either for the further transfer of the product being exported to it by Epigentek, or for the transfer of any item into which Client may incorporate such product, to seek and obtain export licenses/authorizations issued pursuant to those laws. Where Client reexports the merchandise in question, it is the legally responsible party for determining its correct export classification, and for obtaining any necessary export licenses/authorizations, as a courtesy, to aid Client in ascertaining the export classification and the potential applicability of U.S. export control laws, on its invoice, Epigentek shall provide Client (i) with what it believes is the correct classification, under local and U.S. laws, of the product being shipped and (ii) a statement as to the country of origin of the product. Client agrees to hold Epigentek harmless from any and all liabilities or costs incurred by Epigentek or its affiliates for any reason arising from or in connection with any export, import, regulatory, governmental or treaty violations in any jurisdiction, incurred intentionally or unintentionally.
21. Force Majeure. Neither party hereto shall be in default in the performance of its obligations hereunder (other than its obligation to make any payment of money hereunder), or be liable in damages or otherwise for any failure or delay in performance which is due to causes beyond its reasonable control. Either party affected by such an event shall promptly give notice to the other, stating the nature of the event, its anticipated duration and action being taken to avoid or minimize its effect. Neither party hereto shall be required to grant any demand or request to bring to an end any strike or other concerted act of workmen. If, at Client's request or for any reason for which Client is responsible, the production or shipment of products is delayed, Epigentek may immediately invoice Client for the products produced, and costs and expenses incurred up to the time of the delay.
22. Publicity. Any marketing, promotion or other publicity material, whether written or in electronic form, that refers to Epigentek, its affiliates, their products, or to these Terms and Conditions of Sale must be approved by Epigentek prior to its use or release.
23. Proprietary Rights. Epigentek, or its affiliates, is the owners of certain proprietary brand names, trademarks, trade names, logos and other intellectual property. Except as otherwise expressly permitted by Epigentek, no use of Epigentek's or its affiliates' brand names, trademarks, trade names, logos or other intellectual property is permitted, nor the adoption, use or registration of any words, phrases or symbols so nearly resembling any of Epigentek's or its affiliates' brand names, trademarks, trade names, logos or other intellectual property as to be likely to lead to confusion or uncertainty, or to impair or infringe the same in any manner, or to imply any endorsement by Epigentek of another entity's products or services.
24. Severability. If any provision of these terms and conditions is held illegal, invalid, inapplicable or unenforceable, such provision shall be deemed severed from these terms and conditions, the remainder of which shall remain in full force and effect.
25. Entire Agreement. These Terms and Conditions of Sale shall constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the sale of Epigentek products and the provision of Epigentek services and supersedes all prior and contemporaneous understandings or agreements of the parties.
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