1. ENTIRE AGREEMENT. All purchases of products and services (collectively, the “Products”) from NOVA MOLECULAR TECHNOLOGIES, INC., a Texas corporation, or its affiliate identified in the Seller Document, as such term is defined below (Nova Molecular Technologies, Inc. or such affiliate, “Seller”), by customer (“Customer”) shall be subject to these standard Terms & Conditions of Sale (the “Standard Terms”) as well as the consistent terms provided in the quotation, proposal, order acknowledgment, invoice or other document provided by Seller to Customer and into which these Standard Terms are incorporated (each, a “Seller Document”; the Standard Terms together with the consistent terms of the Seller Document are referred to herein as this “Contract”). This Contract (i) constitutes an offer or counteroffer by Seller to sell the Products to Customer; (ii) will be the entire agreement between Seller and Customer on the subject matter hereof; and (iii) is not an acceptance of any offer or counteroffer made by Customer, and this offer and any agreement arising out of this offer are expressly conditioned on Customer’s assent to all of the terms and conditions set forth in the Contract. Seller objects to any additional or different terms or conditions contained in any request for quotation, purchase order, or other document or communication previously or hereafter provided by Customer to Seller. No such additional or different terms or conditions will be of any force or effect. This offer may be revoked by Seller at any time before it is accepted by Customer, and will automatically expire 30 calendar days after its date if Customer has not accepted it before then. There are no conditions to this Contract that are not so contained or incorporated in this Contract by reference.
2. PRICES. Unless otherwise provided in this Contract, prices quoted are subject to change by Seller without notice. Prices do not include applicable taxes, fees, duties, insurance, export, shipping or other governmental fees or charges, all of which shall be paid by Customer, either directly or by reimbursement to Seller on Seller’s demand therefor. Any claim for tax exemption by Customer shall, if applicable, be effective only after receipt of proper exemption forms by Seller, but in no event after delivery has been made. All prices listed in Seller’s publications (including on Seller’s website) are intended as a source of general information only and not as an offer to sell, and all prices contained therein are subject to confirmation by formal quotation by Seller. No order shall be binding upon Seller until received and accepted by Seller in its sole discretion. All prices, and amounts payable, under this Contract are in U.S. Dollars.
3. CANCELLATION. No order may be cancelled or altered by Customer except upon terms and conditions acceptable to Seller, as evidenced by Seller’s written consent. In the event of such an approved cancellation by Customer, Seller shall be entitled to payment of the full price for the Products, less the amount of any expenses saved by Seller by reason of the cancellation.
4. CHANGES. Seller may at any time make such changes in design and manufacture of Products, components or ingredients as Seller deems appropriate, without notice to Customer. Seller may furnish suitable substitutes for Products unobtainable because of priorities or regulations established by governmental authority or non-availability of products from suppliers at commercially reasonable prices.
5. FREIGHT POLICY. Delivery shall be EXW, Seller’s facility (as such shipping term is defined in Incoterms 2020). Shipment or delivery dates are approximate. Partial shipment and/or transshipment shall be permitted. Title and risk of loss pass to Customer upon tender of shipment by Seller to the carrier. If Products are damaged in transit, Customer must file a claim with the carrier. Seller will not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including but not limited to any act of God, act of Customer, embargo or other governmental act, regulation or request, fire, accident, pandemic, epidemic, quarantine, shutdown, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials or goods. In the event of any such delay, the date of delivery will be extended for a period equal to the time lost because of the delay.
6. PAYMENT TERMS. All payment terms set forth in this Contract are subject to Seller’s approval of Customer’s credit, in Seller’s discretion; if such approval is withheld, payment will be due in advance of Seller’s performance. Except as otherwise provided in the Seller Document or in the preceding sentence, payment is due by Customer to Seller within 30 days after the date of Seller’s invoice. Interest will be charged at the lesser of (i) 18% per year, or (ii) the highest rate permitted by applicable law, on accounts more than 30 calendar days past due.
7. NO OFFSET. Customer shall pay for the Products in full, without any setoff, counterclaim, recoupment or other similar rights Customer may have against Seller. If Customer is required under law to withhold or deduct any amount from the payment due to Seller, Customer shall increase the sum it pays to Seller by the amount necessary for Seller to receive an amount equal to the sum it would have received if no withholdings or deductions had been made.
8. RETURN POLICY. Products may be returned only with Seller’s written consent by contacting Seller to obtain a returned products authorization number. Products must be in new, salable condition and in their original packaging subject to inspection when they are received at Seller’s warehouse. Returns may be subject to a freight and restocking charge.
9. WARRANTY. Seller warrants that the Products provided hereunder are free from nonconformity to any specifications provided by Seller in writing, appearing within 90 days after the date Seller delivers the Products to Customer. If, within such period, any such Products shall be proved to Seller’s satisfaction to be defective, the affected Product will be reworked, reprocessed, or replaced free of charge or Seller will refund the purchase price of the affected Product. Such reworking, reprocessing, replacement or refund (whichever remedy Seller determines, in its discretion, to provide) will be Seller’s sole obligation and Customer’s exclusive remedy for any deficiency in Products furnished hereunder and will be conditioned upon Customer’s return of such Products to Seller at Seller’s expense. Any Products reworked, reprocessed or replaced under this warranty are warranted only for the balance of the warranty period on the Product that was reworked, reprocessed or replaced. Customer shall not be entitled to any remedies under this warranty if (i) Customer fails to properly store, seal and maintain the Products in accordance with all Seller’s instructions and/or (ii) Customer fails to notify Seller within seven (7) days after becoming aware of the defect. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Seller shall have no liability with respect to any recommendations or instructions as to handling, use or disposal of any Product, including its use alone or in combination with other products. Except for such testing as may be necessary to test for any agreed-upon specifications or as otherwise agreed by both parties in writing, Seller will not be responsible for any testing of any Products. Any description of Products sold or provided by Seller, whether in writing or made orally by Seller or its employees or agents, and any samples, specifications, bulletins, catalogs, drawings, diagrams, or similar materials used in connection with Seller’s sales efforts or Customer’s orders, are for the sole purpose of identifying the Products, and shall not be construed as an express warranty. Any suggestions by Seller or its employees or agents regarding application, use or suitability of the Products shall not be construed as an express warranty. Seller is not responsible for Customer’s use of the Products.
10. DISCLAIMER OF CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, OR (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute goods or services, or for any other types of economic loss, or for claims of Customer’s customers or any third party for any such damages, costs or losses. Seller shall not be liable to Customer for any amount with respect to any order of Products that, in combination with all claims by Customer against Seller related to such order of Products, exceeds the total price paid by Customer to Seller for such order of Products. SELLER WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO PRODUCTS SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. The liability of Seller to Customer, whether in contract, tort (including negligence or strict liability) or otherwise, is exclusively limited to the remedies expressly provided under the terms of this Contract, in lieu of any and all other remedies at law or in equity.
11. INDEMNIFICATION. Customer shall indemnify, defend and hold harmless Seller and its officers, agents, and employees from and against any losses, damages, liabilities, costs or expenses (including attorneys’ fees) that may arise out of Customer’s acts or omissions, including, but not limited to: (a) any breach by Customer of this Contract; (b) any violation by Customer of any law or regulation; or (c) any use, customization, modification, or resale of the Products by Customer.
12. CONFIDENTIAL INFORMATION. Any and all designs, drawings, bills of materials, blueprints, plans, devices, machinery, specifications, processes, techniques, expertise, business and financial records, part numbers, plans and projections, and other similar information, items, documents and materials made available by Seller or its affiliates to Customer or its affiliates, or otherwise acquired, obtained or developed by Customer under or in connection with this Contract, including, without limitation, the terms of this Contract (including, without limitation, the prices set forth in this Contract) (collectively, the “Confidential Information”) are and at all times shall remain the exclusive property of Seller. “Confidential Information” shall not include any item of information that Customer can demonstrate by documentary evidence: (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Customer or any of its employees, officers, directors, agents or affiliates, or (b) is disclosed to Customer by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality restrictions. Customer agrees that it shall not (i) make any use whatsoever of the Confidential Information except for the purpose(s) specified in this Contract; or (ii) disclose the Confidential Information to any third party. Customer’s obligations under this Section 12 shall remain in effect for the three (3)-year period immediately following the last delivery of the Products to which this Contract relates; provided, however, that the expiration of the aforementioned period shall not modify, limit or restrict any rights of Seller or obligations of Customer under any applicable law relating to trade secrets. Customer acknowledges and agrees that money damages for any and all breaches of Customer’s obligations under this Section 12 are both incalculable and insufficient and that any such breach would irreparably harm Seller. Therefore, in the event of an actual or prospective breach of any such obligation, Seller shall be entitled to a permanent and/or preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Section 12 against Customer in addition to any other remedies to which Seller may be entitled at law or in equity.
13. USES AND SAFE HANDLING. Customer shall (a) promptly and carefully inspect the Product upon receipt; (b) maintain appropriate safe handling and use procedures, (c) ensure that its employees and customers have read the safety data sheet for the Products (which are available on the applicable Product webpage through https://novamolecular.com/) and understand the hazards, proper use and handling requirements of the Product, (d) ensure that the Product will not be used, resold, or combined for end uses intended to be or reasonably likely to be toxic or lethal to human beings, (e) ensure that the Product will not be used, resold, or combined to manufacture controlled substances, and (f) comply with applicable health and safety regulations, and all other applicable laws, rules and regulations. Seller’s weights and measures shall govern, except in case of proven error. Except as expressly provided by Seller in writing, the Products are intended for sale to, and purchase and ultimate use by, commercial or industrial users only. The Products are not intended for consumer purchase or use, and Seller’s warranties do not extend to any consumer. Seller may allocate its available supply of Products among its customer, itself, and its affiliates on such basis as Seller deems fair and reasonable if Seller is unable, for any reason, to supply quantities of Product contemplated this Contract.
14. APPLICABLE LAW. This Contract, and all disputes between Customer and Seller that arise out of or relate to the negotiation, performance or enforcement of this Contract, shall be governed by and construed in accordance with the substantive and procedural laws of the State of Wisconsin, without regard to any provisions regarding choice of law. THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS. Any dispute or issue between the parties arising as aforesaid shall be commenced and prosecuted in its entirety in any state or federal court in Milwaukee County, Wisconsin, and each party consents to personal and subject matter jurisdiction and venue in such courts and waives and relinquishes all right to attack the suitability or convenience of such venue or forum by reason of their present or future domiciles, or by any other reason. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR FORUM TO WHICH THEY MAY BOTH BE PARTIES, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS CONTRACT, THE BREACH OF THIS CONTRACT, OR WITH RESPECT TO ANY MATTER OR DISPUTE BETWEEN THEM. Customer agrees to pay or reimburse on demand all costs, including attorneys’ fees and legal costs, incurred by Seller in connection with the enforcement of Seller’s rights in connection with the Products or this Contract, including, without limitation, lien rights.
15. CUMULATIVE REMEDIES. Seller’s rights and remedies under this Contract are cumulative and in addition to all other rights and remedies available to Seller at law or in equity.
16. NO ASSIGNMENT. Customer shall not assign its rights or delegate its duties under this Contract. Any such attempted assignment or delegation shall be null and void.
17. COMPLIANCE WITH LAWS. Customer shall conduct its business in strict compliance with all laws and regulations. Customer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization in respect of the use, customization, modification, handling, transportation, storage, import, sale or disposal of the Products required under any applicable law or regulation. Customer shall not export or re-export, directly or indirectly, the Products without obtaining any license or approval required by any governmental authority as well as obtaining Seller’s written consent.
18. INDEPENDENT CONTRACTORS. The parties understand and agree that nothing contained in this Contract shall be construed as creating a joint venture, partnership or other similar arrangement between the parties.
19. MISCELLANEOUS. If any provision of this Contract is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Contract shall continue in full force and effect. Neither party’s delay or failure in enforcing any right or remedy afforded under this Contract or by law shall prejudice or operate to waive that right or remedy or any other right or remedy which it may have available; nor shall any such failure or delay operate to waive either party’s rights to any available remedies due to a future breach of this Contract, whether of a like or different character. No amendment, modification, or waiver of the provisions of this Contract shall be valid or binding on either party unless it is in writing and signed by both of the parties.
20. UPDATES. THESE STANDARD TERMS MAY BE MODIFIED, AMENDED AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF SELLER UPON WRITTEN NOTICE TO CUSTOMER.