These Terms and Conditions of Sale shall govern all orders for the purchase of products from StemVivo, Inc. (“StemVivo”) placed by the purchaser (“Purchaser”). Purchaser will be deemed to have agreed to these Terms and Conditions by ordering products. No variation of these terms and conditions will be binding upon StemVivo unless agreed to in writing and signed by an authorized representative of StemVivo and Purchaser.
The biological samples/material supplied by StemVivo are obtained according to varying levels of consent and/or IRB (Institutional Review Board) involvement. Purchaser is responsible for confirming the specific consent level of products purchased meet and/or comply with Purchaser’s research requirements.
2. INTELLECTUAL PROPERTY RIGHTS
StemVivo has not verified the possible existence of third-party intellectual property rights which might be infringed as a consequence of product manufacture, use, sale, offering to sale or import, and StemVivo shall not be held liable for any loss or damages in that respect. The sale shall not, by implication or otherwise, convey any license under any intellectual property right and Purchaser expressly assumes all risks of any intellectual property infringement. Nothing contained in this Agreement will be construed as an assignment to Purchaser of any intellectual property rights in or to the products. All intellectual property rights in or to the products are and will remain the sole and exclusive property of StemVivo and are reserved by StemVivo.
3. AUTHORIZED USES
The biological samples/material supplied by StemVivo, or any material derived from the samples, are for in-vitro research use only. Purchaser shall not use any materials or clinical data obtained from StemVivo: (A) for any use that is in contravention of applicable law or informed consent; or (B) as a source material for human clinical therapies. Human material may be used in vivo in animals.
Products are sold for laboratory research use only, not for diagnostic or therapeutic use, and are not to be administered to humans. Products bearing the CE mark are For In Vitro Diagnostic Use Only and provided for professional use in the European Union (EU). Purchaser shall not reverse-engineer, analyze or otherwise attempt to derive the properties, composition, construction, or method of manufacture of any of the products, including but not limited to, analysis by physical, chemical, or biochemical means and shall not cause a third-party to do the same.
4. NO RESALE
Purchaser shall not make products or any portion of them, in any way, shape or form, including as a component of another product available for the purpose of further resale or alter or remove the product label and the StemVivo mark of origin without the express written permission of StemVivo.
5. PURCHASE ORDERS
Purchase orders (“PO”) may be used to acquire products or services from StemVivo. A PO may be placed in any commercially reasonably manner the parties determine is appropriate, including via facsimile or e-mail. Each PO will indicate the products or services and any appropriate specifications related thereto, quantity, price, total purchase price, shipping instructions, requested delivery dates, appropriate billing and shipping addresses, and any other special instructions. All POs are subject to acceptance by StemVivo. In the event of any conflict between the terms of any PO and these Terms and Conditions, these Terms and Conditions shall govern the rights and obligations of the parties.
StemVivo’s list prices are subject to change without prior notice to the Purchaser. StemVivo may, by giving notice to the Purchaser at any time up to ten (10) business days before delivery, increase the cost set out in an invoice to reflect any increase in costs due to: (a) any factor beyond StemVivo’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labor, materials, manufacturing and shipping costs); (b) any request by the Purchaser to change the delivery date(s), quantities or types of material ordered, or the specification; or (c) any delay caused by any Purchaser instructions or the Purchaser’s failure to give StemVivo adequate or accurate information or instructions.
Payment by the Purchaser shall be due no later than thirty (30) days of receipt of such invoice. Purchaser shall pay all applicable sales tax, including any and all value added tax, shipping, import or export duties, customs fees and freight charges. Interest shall be payable, calculated on a daily basis, on any overdue payments, at the maximum rate allowed by law. Purchaser shall not assert any credit, set-off or counterclaim against StemVivo to justify withholding payment of any such amount in whole or in part. The method of payment shall be separately agreed by both parties hereto.
North America: All Canada and U.S. orders are shipped from a StemVivo facility in North America FOB Origin, Prepay and Add. Under this term, transportation and cargo insurance will be arranged for and paid by StemVivo, and then invoiced by StemVivo to the Purchaser.
International: All StemVivo international orders are shipped FCA Origin (Incoterms 2010). In addition, as provided for under FCA Origin, StemVivo will act as a transportation agent and will assume responsibility to arrange for and pay for transportation and insurance to the point of entry in the Purchaser’s country and to invoice the Purchaser for those costs.
For International shipments, the Purchaser assumes all responsibility for the importation of the product into the Purchaser’s country, including obtaining all required permits, licenses or certificates. StemVivo shall not be liable, under any circumstances, for the failure of any government authority to issue such permits, licenses or certificates.
For each of the above, risk of loss or damage to the products, as well as the obligation to bear any costs relating thereto, shall pass to the Purchaser upon StemVivo making delivery to a carrier at StemVivo’s facility in good condition. Title to the products shall pass from StemVivo to Purchaser upon delivery of the products to Purchaser.
8. CLAIMS AND RETURNS
Product returns will not be accepted by StemVivo without prior written authorization. Request to return products must be made within seven (7) days of receipt. StemVivo reserves the right to test a sample of the product prior to authorizing the return of the remaining product and to deny return if, in the opinion of StemVivo, the product complaint is a result of inappropriate usage or handling rather than a failure of the product to meet specifications as outlined on our Product Information Sheets, when used under normal conditions in your laboratory. Return of custom products will not be authorized if such product meets the specifications on the custom order form. In case of a purchasing error or change in the order after the product has been shipped, a 25% restocking fee will be charged. If StemVivo makes a shipping error, either a replacement product will be shipped at no charge or the Purchaser’s account will be credited.
9. HAZARDOUS MATERIALS
PRODUCTS DELIVERED PURSUANT TO THESE TERMS AND CONDITIONS MAY BE EXPERIMENTAL IN NATURE AND HAVE HAZARDOUS OR UNKNOWN PROPERTIES. STEMVIVO MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS OF THE PRODUCTS OR DATA FOR A PARTICULAR PURPOSE. Purchaser agrees that all individuals who handle the Materials on the Purchaser’s behalf adhere to Universal Precautions for the Prevention of Transmission of HIV and other Bloodborne Pathogens (www.cdc.gov/niosh/topics/bbp/).
10. ASSUMPTION OF RISK
TO THE FULLEST EXTENT PERMITTED BY LAW, THE PURCHASER SHALL ASSUME ALL LIABILITY FOR DAMAGES OR LOSS THAT MAY ARISE FROM THE PURCHASER’S USE, STORAGE, TRANSFER, PROCESSING OR DISPOSAL OF THE PRODUCTS OR DATA. TO THE FULLEST EXTENT PERMITTED BY LAW STEMVIVO SHALL NOT BE LIABLE TO THE PURCHASER OR ANY OTHER PARTY FOR ANY LOSS, CLAIM OR DEMAND MADE BY OR AGAINST THE PURCHASER OR OTHER PARTY, DUE TO OR ARISING OUT OF THE SERVICES OR THE USE OF THE PRODUCTS AND DATA, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF STEMVIVO. TO THE FULLEST EXTENT PERMITTED BY LAW STEMVIVO SHALL NOT BE LIABLE TO THE PURCHASER OR ANY OTHER PARTY FOR ANY LOSS, CLAIM OR DEMAND MADE BY OR AGAINST THE PURCHASER OR OTHER PARTY, DUE TO OR ARISING OUT OF THE PURCHASER GOODS. PURCHASER SHALL HOLD HARMLESS, INDEMNIFY AND DEFEND STEMVIVO, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, INJURIES, DAMAGES, LOSSES OR SUITS INCLUDING ATTORNEY FEES, ARISING OUT OF OR IN CONNECTION WITH THE PURCHASER GOODS.
11. LIMITATION ON LIABILITY
STEMVIVO’S LIABILITY TO THE PURCHASER FOR ANY CAUSE WHATSOEVER IN RELATION TO ANY PO GOVERNED BY THESE TERMS AND CONDITIONS SHALL BE LIMITED TO DIRECT COSTS AND DAMAGES ONLY IN AN AMOUNT NOT EXCEEDING THE TOTAL AMOUNT RECEIVED BY STEMVIVO FROM THE PURCHASER UNDER THE PARTICULAR PO WITH RESPECT TO WHICH THE LIABILITY ARISES. STEMVIVO’S MAXIMUM LIABILITY TO THE PURCHASER IN RELATION TO THESE TERMS AND CONDITIONS FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO DIRECT COSTS AND DAMAGES ONLY IN AN AMOUNT NOT EXCEEDING THE SUM EQUIVALENT TO THE TOTAL AMOUNT RECEIVED BY STEMVIVO FROM THE PURCHASER UNDER THESE TERMS AND CONDITIONS. THE PARTIES HEREBY AGREE THAT THE LIMITATIONS CONTAINED HEREIN ARE REASONABLE IN LIGHT OF ALL THE CIRCUMSTANCES. TO THE FULLEST EXTENT PERMITTED BY LAW ALL LIABILITY THAT IS NOT EXPRESSLY ASSUMED BY STEMVIVO IN THESE TERMS AND CONDITIONS IS HEREBY EXCLUDED. UNDER NO CIRCUMSTANCES SHALL STEMVIVO BE LIABLE TO THE PURCHASER FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE CAUSE.
These Terms and Conditions and all POs are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersede and merge all prior discussions or proposals between the parties. These Terms and Conditions take precedence over any conflicting terms, including without limitation, terms included on an invoice or PO.
13. INDEPENDENT CONTRACTORS
The relationship between the parties is that of independent contractors. Nothing in these Terms and Conditions shall be interpreted to create a partnership, joint venture or employment relationship. No party may act as an agent of the other party hereunder, except as otherwise provided herein.
Facsimile or PDF electronic signatures shall be accepted as original signatures. Placement of any orders or the transaction of any business by electronic medium shall be subject to these Terms and Conditions. These Terms and Conditions may be executed as two or more counterparts, each of which shall be deemed an original agreement.
15. NO THIRD PARTY BENEFICIARIES
These Terms and Conditions are not enforceable by any person or entity that is not a party to it.
16. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Terms and Conditions to the extent that such failure or delay is caused by an Unforeseen Event. An Unforeseen Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.
The Purchaser shall not assign or transfer these Terms and Conditions without the prior written consent of StemVivo, which shall not be unreasonably withheld. StemVivo may assign or transfer these Terms and Conditions, in whole or in part, to an Affiliate pursuant to a merger, acquisition or sale of substantially all of the assets of the company.
18. SEVERABILITY AND WAIVER
If any provision of these Terms and Conditions shall be void, unlawful or for any reason unenforceable, that provision shall be severed from these Terms and Conditions and, if possible, replaced by a term or provision which, so far as practicable achieves the legitimate aims of the Parties. Any provision deemed void, unlawful or for any reason unenforceable shall not affect the validity and enforceability of the remaining provisions of these Terms and Conditions. Failure or delay by StemVivo in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of its rights under the Contract. Any waiver by StemVivo shall not be deemed a waiver of any subsequent breach.
The parties agree that any amendment, revision, waiver or alteration to these Terms and Conditions shall be in writing and signed by both parties. No waiver by either party of any breach of these Terms and Conditions shall be a waiver of any preceding or subsequent breach. No waiver by either party of any right under these Terms and Conditions shall be a waiver of any other right. The parties shall not be required to give advance notice to enforce strict adherence to the terms of these Terms and Conditions.
20. GOVERNING LAW
The validity, interpretation and enforcement of these Terms and Conditions shall be governed by the laws of the State of Florida without reference to conflict or choice of law provisions.