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EXPRESSION PATHOLOGY INCORPORATED GENERAL TERMS and CONDITION …
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Language: english
Created: Fri Mar 10 08:00:15 2006
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EXPRESSION PATHOLOGY INCORPORATED GENERAL TERMS and CONDITION
FITNESS FOR ANY PARTICULAR PURPOSE. Our warranty shall not be
effective if we determine, in our sole discretion, that you have altered or
1. Acceptance Governing Provisions: In these General Terms and
misused the goods or have failed to use or store them in accordance with
Conditions (the Conditions) we, us, and our means Expression Pathology
instructions furnished by us. Our sole and exclusive liability and your
Incorporated or the Expression Pathology affiliate that is processing this order
exclusive remedy with respect to goods proved to our satisfaction (applying
or purchase of goods, and you and your means the person, company or other
analytical methods reasonably selected by us) to be defective or
legal entity that orders or buys goods from us and in each case their respective
nonconforming shall be the replacement of such goods free of charge, upon
successors and/or assigns. We are shipping these goods subject to these
the return of such goods in accordance with our instructions, although at our
Conditions. You will be deemed to have assented to these Conditions unless
discretion we may provide a credit or refund in accordance with Section 4
you return the goods to us within 15 days after your receipt of the goods and
above. IN NO EVENT SHALL WE BE LIABLE UNDER ANY LEGAL
this form. Our failure to object to provisions contained in any purchase order
THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT,
or other form or document from you shall not be construed as a waiver of
NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY
these Conditions nor an acceptance of any such provision. These Conditions,
KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
including all writings incorporated herein by reference, any quotation issued
CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT
to you by us, and those specific terms of a purchase order or other document
NOT LIMITED TO LOST PROFITS), EVEN IF WE HAD NOTICE OF THE
that are either consistent with these Conditions or expressly agreed upon by us
POSSIBILITY OF SUCH DAMAGES . If we manufacture custom goods for
in writing, constitute the entire contract between us (the Contract), and
you based on instructions, specifications, or other directions you provide to us,
supersede all prior agreements and understandings between us, whether
we shall not be liable for the lack of sufficiency, fitness for purpose or quality
written or oral, relating to the subject matter hereof. In the event of a conflict,
of the goods to the extent attributable to such instructions, specifications, or
a quotation takes precedence over these Conditions, and a written contract
other directions. We shall not be liable for any loss, damage or penalty as a
signed by both of us takes precedence over either. If one or more of these
result of any delay in or failure to manufacture, deliver or otherwise perform
Conditions are held to be invalid, illegal, or unenforceable by a court of
hereunder due to any cause beyond our reasonable control.
competent jurisdiction, the remaining Conditions shall be unimpaired.
8. Compliance with Laws and Regulations: We certify that to the best of
2. Delivery: Unless specified differently in writing, all sales are FCA our
our knowledge: our goods are produced in compliance with all applicable
shipping point. We reserve the right to make delivery in installments, all such
federal, state, and local statutes, rules, regulations, ordinances, and orders,
installments to be separately invoiced and paid for when due per invoice.
including applicable requirements of the Fair Labor Standards Act, as
amended, the Occupational Safety and Health Act of 1970 and Executive
3. Inspection and Returns: Upon your receipt of goods shipped hereunder, Order 11246; we have a written Affirmative Action Program and annually file
you shall inspect the goods and notify our Customer Services Department of Standard Form 100 (EEO-1); we do not discriminate against any employee or
any claims for shortages, defects or damages. If you fail to so notify us within prospective employee because of race, creed, color, national origin, sex, age
three days after you receive the goods, the goods shall conclusively be or handicap, nor permit discrimination in any form nor maintain segregated
deemed to conform to these Conditions and to have been irrevocably accepted facilities for our employees; we actively pursue employment of minorities,
by you. Authorization for all product returns must be approved by our females, handicapped, disabled veterans and veterans of the Vietnam era; and
Customer Services Department and a return authorization number given to we use our best efforts to award contracts to and place purchase orders with
you prior to the return of goods. Not all items will be authorized for return, minority business enterprises and with labor surplus area concerns and small
due to temperature and packing requirements. Items authorized for return business concerns.
must arrive at our facilities in a state satisfactory for resale to be eligible for
product credit. A restocking charge of 25% or $25 (whichever is greater) shall
9. Intellectual Property Rights
be charged on returns that are not the result of any error or fault of ours.
Shipping charges will not be credited. Goods may not be returned for credit
after 20 days after your receipt of the goods. 9.1 We warrant to you that the manufacture and sale by us of goods
manufactured by or for us without reliance upon instructions,
specifications, or other directions provided by you and delivered
4. Credits and Refunds: At our discretion, we may issue a product credit or
hereunder, to our knowledge will not infringe the claims of any patent,
refund for the product value and shipping charges. No product credit shall be
trademark or copyright (Intellectual Property) of any third party. We do
available for use if a past due balance is outstanding on the account.
not warrant that the manufacture and sale by us of goods manufactured
in reliance upon instructions, specifications, or other directions provided
5. Payments: Unless otherwise specified in a written quotation we provide to by you or your use or resale of goods delivered hereunder will not
you or written contract between the parties: goods will be billed at the price in infringe the claims of any Intellectual Property of any third party.
effect at the time shipment is made; such prices shall be subject to change
from time to time without notice; terms of sale are net 30 days of date of
9.2 If any claim is made against you or us for infringement of
invoice, in U.S. Dollars. If you default in making any payment to us when
Intellectual Property rights of any third party arising from the
due, we, at our option and without prejudice to our other lawful remedies, may
manufacture or sale of goods by us in circumstances in which the
defer delivery or cancel the Contract.
manufacture of such goods was not based upon instructions,
specifications, or other directions provided by you, we shall assume the
6. Taxes and Other Charges: Any use tax, sales tax, excise tax, duty, defense of any ensuing litigation and conduct all negotiations for
inspection or testing fee, or any other tax, fee or charge imposed by any settlement of such claims and will bear the costs of any payment made in
governmental authority, on or measured by the transaction between us shall be settlement or resulting from an award; provided that you shall give us
paid by you in addition to the prices quoted or invoiced. If we are required to notice in writing as early as is reasonably practicable of any such claim
pay any such tax, fee or charge, you shall reimburse us therefor or provide us being made or action threatened or brought against you, shall make no
at the time the order is submitted an exemption certificate or other document admission of liability or take any other action in connection with such
acceptable to the authority imposing the tax, fee or charge. matter and shall permit us to defend such claim and shall (at our
expense) give all reasonable information, co-operation and assistance to
us (including without limitation lending your name to proceedings) in
7. Warranty: We warrant to you, our direct customer, that our goods shall relation thereto. The foregoing describes our entire liability to you and
conform substantially to the description of such goods as provided in our
your exclusive remedies against us in connection with claims made
catalogues and literature accompanying the goods until their respective against you based on or resulting from such infringement of Intellectual
expiration dates or, if no expiration date is provided, for 6 months from the Property rights of third parties.
date of your receipt of such goods. THIS WARRANTY IS EXCLUSIVE,
AND WE MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR 9.3 If any claim is made against us for infringement of Intellectual
Property rights of any third party as a result of (i) the manufacture or
Expression Pathology Inc. Terms and Conditions, March 10, 2006 1/2
sale of goods based upon instructions, specifications, or other directions purchased from us are to be repackaged, relabeled or used as starting
provided by you or (ii) your use or resale of goods purchased from us, materials or components of other products, you will verify our assay of
you shall indemnify us, defend us and hold us harmless from and against the goods, qualify the goods provided by us for such applications, and
any and all losses, damages and expenses (including reasonable comply with all governmental requirements relating to labeling or
attorneys' fees and other costs of defending any action) that we may providing other communications to customers. You acknowledge that
incur as a result thereof. You shall fully cooperate with us in any we provide Material Safety Data Sheets (MSDS) for our products, and
investigation relating to any such claims and make available to us all that they are available electronically on our web site at
related statements, reports and tests available to you. http://www.ExpressionPathology.com, or in paper copy by calling our
Customer Service Tech line at 800-955-6288, and that you are willing
and able to access MSDS by these means. You also agree to inform your
10. Authorized Uses
employees of the risks, if any, involved in using or handling the goods
and to train and equip them to handle the goods safely.
10.1 Except as otherwise agreed in writing by our authorized
representative, the purchase of goods only conveys to you the non-
10.6 You acknowledge that products received from us are subject to
transferable right for only you to use the quantity of goods and
U.S. export control laws and regulations. You represent and warrant to
components of goods purchased in compliance with the applicable
us that you will not, directly or indirectly, (1) sell, export, re-export,
intended use statement, limited use statement or limited label license, if
transfer, divert, or otherwise dispose of any products, software, or
any, in our catalogues or on the label or other documentation
technology (including products derived from or based on such
accompanying the goods (all such statements or licenses being
technology) received from us to any destination, entity, or person
incorporated herein by reference as if set forth herein in their entirety).
prohibited by the laws or regulations of the United States, or (2) use the
product for any use prohibited by the laws or regulations of the United
10.2 Unless otherwise expressly indicated in our catalogues or on the States and/or your local jurisdiction, without obtaining prior
label or other documentation accompanying the goods, the goods are authorization from the competent government authorities as required by
intended for research use only and are not to be used for any other those laws and regulations
purposes including, but not limited to, unauthorized commercial
purposes, in vitro diagnostic purposes, ex vivo or in vivo therapeutic
11. Indemnity: You shall, at your own expense, indemnify us, defend us and
purposes, investigational use, in foods, drugs, devices or cosmetics of
hold us harmless from and against any and all losses, damages and expenses
any kind, or for consumption by or use in connection with or
(including reasonable attorneys' fees and other costs of defending any action)
administration or application to humans or animals. You acknowledge
that we may incur as a result of any claim of negligence, breach of implied
that the goods have not been tested by or for us for safety or efficacy,
warranty, strict liability in tort, or other theory of law, by you, your officers,
unless expressly stated in our catalogues or on the label or other
agents or employees, your successors and assigns, and your customers,
documentation accompanying the goods. Without limiting the foregoing
whether direct or indirect, in connection with the use or resale of any goods
restrictions, you warrant to us that should you use or sell the goods for
sold pursuant hereto either as a standalone product or a component part or raw
any use other than research, you shall conduct all necessary tests,
material of another product, or by reason of your breach of or failure to
comply with all applicable regulatory requirements, issue all appropriate
perform any of your obligations hereunder, except to the extent provided in
warnings and information to subsequent purchasers and/or users and be
Condition 9.2 above or caused by a breach by us of the express warranty set
responsible for obtaining any required Intellectual Property rights.
forth in Condition 7 herein. You shall notify us promptly of any incident
involving goods sold pursuant hereto resulting in personal injury or damage to
10.3 You represent and warrant to us that: you will properly test, use, property, and you shall fully cooperate with us in the investigation of such
and, to the extent authorized, manufacture and market any goods incident and provide us with all related statements, reports and tests available
purchased from us and any final articles made from them in accordance to you.
with the practices of a reasonable person who is an expert in the field,
including, but not limited to, a technically qualified individual (40
12. Technical Assistance: Unless otherwise agreed, all technical assistance
C.F.R. § 720.3(ee)), and in strict compliance with all applicable national,
and information we provide to you regarding the goods will be provided
state, provincial, and local food, drug, device, and cosmetic and other
gratis, and you assume sole responsibility for results obtained in reliance
relevant laws and regulations, now and hereinafter enacted; and any final
thereon. We make no warranty regarding such technical assistance or
articles manufactured from the goods shall not be adulterated or
information.
misbranded within the meaning of the Federal Food, Drug and Cosmetic
Act and shall not be articles which may not, under Sections 404, 505, or
512 of the Act, be introduced into interstate commerce. 13. Miscellaneous: The Contract shall be governed by and construed in
accordance with the laws of the State of Maryland, without giving effect to the
principles of conflicts of laws. Our exercise of any option, or failure to
10.4 You realize that, because our goods are intended primarily for
exercise any rights hereunder shall not constitute a waiver of our rights to
research purposes, they may not be on the Toxic Substances Control Act
damages for breach of contract and shall not constitute a waiver of any
(TSCA) inventory. You assume responsibility to ensure that the goods
subsequent failure, delay, or breach by you. We may assign our rights and/or
purchased from us are approved for use under TSCA, if applicable.
obligations under the Contract to any person in whole or in part.
Consistent with your agreement to comply with all TSCA R&D
substance exemption requirements applicable to the purchase, you agree
and warrant that you will comply with all requirements necessary to For questions regarding the Terms and Conditions please contact
maintain the R&D exemption, including using the R&D substance under
the supervision of a technically qualified individual, maintaining all
necessary labeling, and providing all necessary notifications. You also
Expression Pathology Inc.
agree and warrant that you will use or sell the R&D substance
Attn: Legal Counsel
exclusively for R&D purposes or specified exempt commercial
9290 Gaither Road
purposes. You specifically agree and warrant that you will not sell or
Gaithersburg, MD 20878
distribute the R&D substance to consumers .
Phone: 301.977.3654
10.5 You have the responsibility to conduct any research necessary to
learn the hazards involved for any of your uses of goods purchased from
us and to warn your customers, employees and any auxiliary personnel
(such as freight handlers, etc.) of any risks involved in using or handling
the goods. You agree to comply with instructions for use of the goods
furnished by us, if any, and not to misuse the goods. If the goods
Expression Pathology Inc. Terms and Conditions, March 10, 2006 2/2