1. Acceptance of Terms — By purchasing and accepting delivery of products supplied by SES Research(“Products”) you agree to be bound by these terms and conditions (the “Terms and Conditions”). Terms or conditions contained in any order form or other document submitted by you which are inconsistent with, or in addition to, these Terms and Conditions are rejected, objected to and shall be deemed void and of no force or effect.
2. Changes — Once submitted, any change(s) to your order(s) may be made only with advance written approval of SES Research and such changes may require different terms, including a change in the price and/or time of delivery. Once submitted, you may not cancel any order unless cancellation is expressly approved by SES research in writing, which approval may be contingent on your payment of SES Research’s costs or other charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on SES Research by its suppliers, and any other costs resulting from cancellation. A verified bill of costs issued by an officer or other authorized representative of SES Research shall be conclusive as to the amount of such costs. SES Research reserves the right to cancel any order, in whole or in part, upon your breach of these terms and conditions or your bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading SES Research to reasonably question your willingness or ability to perform.
3. Delivery, claims — All sales will be delivered Ex Works SES Research’s shipping point unless otherwise noted. If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of Products to the carrier at SES Research’s shipping point shall constitute delivery to you and you shall bear all risk of loss or damage in transit. The general method of shipment for each item is listed in SES Research’s product directory. However, SES Research reserves the right, in its sole discretion, to determine the exact method of shipment for any particular shipment. SES Research reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve you of your obligations to accept remaining deliveries. Immediately upon your receipt of any Products shipped hereunder, you shall inspect the same and shall notify SES research in writing of any claims for shortages, defects or damages and shall hold Products for SES Research’s written instructions concerning disposition. If you fail to so notify SES Research within five days after the Products have been received by you, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the you.
4. Delays — Any specified delivery dates are estimates only and do not represent a promise by SES Research to deliver Products at a date certain. SES Research shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond SES Research’s reasonable control, including, without limitation, unsuccessful reactions, act(s) of you, embargo or other governmental act, regulation or request affecting the conduct of SES Research’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices. If any such event continues for longer than 180 days, either party may terminate your order and you will pay SES Research for work performed prior to termination and all reasonable expenses incurred by SES Research as a result of termination. In the event of delays in delivery or performance caused by force majeure or by you, the date of delivery or performance shall be extended by the period of time SES Research is actually delayed or as mutually agreed. If, for reasons other than the foregoing, SES Research should default or delay or not deliver Products, your sole remedy against SES Research is an option to cancel your purchase order, through prior written notice to SES Research.
5. Security Interest in Unsold Inventory — To secure your obligation to pay SES Research for the purchase of products, you grant to SES Research a purchase money security interest in all products purchased from SES Research, and in all proceeds thereof.
6. Allocation of Products — If SES Research is unable for any reason to supply the total demands for Products specified in your order, SES Research may allocate its viable supply among any or all customers (including SES Research’s distributors) on such basis as SES Research may deem fair and practical, without liability for any failure of performance which may result therefrom.
7. Payment and Interest — Unless otherwise stated, payment in full shall be made within 30 days of invoice. SES Research reserves the right to require an advanced deposit of up to 100% of the purchase price at the time of order or any time prior to delivery as a condition of performance. If for any reason SES Research, in its sole and unfettered discretion, deems the ultimate collectability of the purchase price to be in doubt, SES Research may, without notice to you, delay or postpone the delivery of the Products and may, at its option, change the terms of payment to payment in full or in part in advance, with respect to the entire undelivered balance of Products. In the event of default by you in the payment of the purchase price or otherwise, SES Research, at its option, without prejudice to any other of SES Research’s lawful remedies, may defer delivery, cancel your order and any other order of you, or sell any undelivered products on hand for the account of you and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and you agree to pay the balance then due to SES Research on demand. You agree to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by you in any of the terms hereof. Invoices remaining unpaid after their due date will be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law). You must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.
8. Taxes and other charges — SES Research shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, with the sole exception of any sales taxes invoiced and collected from you by SES Research. All other such charges (if any) must be paid by you separately and in addition to the prices quoted or invoiced. In the event SES Research is required to pay any such tax, fee or charge, you shall reimburse SES Research therefore; or, in lieu of such payment, you shall provide SES Research at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge. If the recipient is unresponsive to the contact from the shipping company or refuses to pay the import duties/customs/VAT of the recipient’s shipping country, the recipient will still be held liable for any shipping charges SES Research Inc. has incurred, even if the package is destroyed or returned to the shipper, and will be subject to a 20% restocking fee.
9. Pricing — Any quotation provided by SES Research is firm only if you place a corresponding order within the time specified on the quote or, if no time period is mentioned, within 30 days. You must request shipment of the entire quantity of Products ordered within 6 months from the date of order, otherwise, SES Research’s standard prices at time of shipment may apply, at SES Research’s option, to future deliveries.
10. Price Changes — Shipment will be made promptly even if prices have been nominally increased. Price changes will be automatically applied to your invoice. Notwithstanding any price quotation or prices listed by SES Research, if at any time prior to delivery SES Research’s costs of materials have increased by 10% or more, then SES Research may cancel any accepted but undelivered orders or condition the continuance of any order on your agreement to a corresponding increase in price.
11. Warranties — SES Research warrants that its products shall, at the time of delivery, conform to the description of such products as provided to you by SES Research through SES Research’s product directory, analytical data or other then-current literature. THIS WARRANTY IS EXCLUSIVE, AND SES RESEARCH MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. SES Research’s warranties made in connection with this sale shall not be effective if SES Research has determined, in its sole discretion, that you have misused the Products in any manner, have failed to use the Products in accordance with industry standards and practices, or have failed to use the Products in accordance with instructions, if any, furnished by SES Research. SES RESEARCH’S SOLE AND EXCLUSIVE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO SES RESEARCH’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN SES RESEARCH’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH SES RESEARCH’S INSTRUCTIONS. SES RESEARCH SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF SES RESEARCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SES RESEARCH’S GROSS NEGLIGENCE. THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS AND CONDITIONS. SES RESEARCH’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC PRODUCTS THAT GIVE RISE TO THE BREACH. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY. ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.
12. Your Use of Products — SES Research’s Products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, in SES Research’s product directory or in other literature furnished to you, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes. You acknowledge that the Products have not been tested by SES Research for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in SES Research’s literature furnished to you. You expressly represent and warrant to SES Research that you will properly test, use, manufacture and market any Products purchased from SES Research and/or materials produced with Products purchased from SES Research in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. You further warrant to SES Research that any material produced with Products from SES Research shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.
Distributor’s Use of Products — SES Research’s Products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, in SES Research’s product directory or in other literature furnished to Distributor, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes. Distributor acknowledges that the Products have not been tested by SES Research for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in SES Research’s literature furnished to Distributor. Distributor expressly represents and warrants to SES Research that Distributor will properly test, use, manufacture and market any Products purchased from SES Research and/or materials produced with Products purchased from SES Research in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. Distributor further warrants to SES Research that any material produced with Products from SES Research shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.
Distributor realizes that, since SES Research’s Products are, unless otherwise stated, intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. Distributor assumes responsibility to assure that the Products purchased from SES Research are approved for use under TSCA, if applicable.
Distributor has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using Products purchased from SES Research. Distributor also has the duty to warn Distributor’s customers, employees, contractors, agents and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products. Distributor agrees to comply with instructions, if any, furnished by SES Research relating to the use of the Products and not misuse the Products in any manner. If the Products purchased from SES Research are to be repackaged, relabeled or used as starting material or components of other products, Distributor will verify SES Research’s assay of the Products. No Products purchased from SES Researchshall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
Product Modifications/Improvements — Distributor is not authorized to modify Products in any manner, without specific authorization from SES Research. Notwithstanding the foregoing, Distributor agrees to promptly disclose to SES Research in writing any improvement, concept, design, work of authorship, discovery or idea (whether patentable or not and including those which may be subject to copyright protection) generated, conceived, or reduced to practice by Distributor in connection with the sale of Products (collectively “Improvements”). Any Improvement to any Products shall be the sole and exclusive property of SES Research and shall be treated as “work made for hire” as defined in the Copyright Act at 17 U.S.C. Section 101. Distributor hereby assigns to SES Research all rights in the Improvements, including, without limitation, all patent, copyright, trademark and trade secret rights.
Distributor’s Representations and Indemnity — Distributor represents and warrants that it shall use all Products ordered herein in accordance with Section 13 “Distributor’s Use of Products,” and that any such use of Products will not violate any law or regulation. Distributor agrees to indemnify and hold harmless SES Research and SES Research’s parents, affiliates, agents, officers, directors, employees and assigns (collectively, “SES Research Parties”) from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that the SES ResearchParties, or any of them, may sustain or incur as a result of: (a) any claim against the SES ResearchParties based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by Distributor, its officers, agents, employees, successors or assigns, Distributor’s customers, end users, auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, SES Research’s Products or the use thereof; (b) Distributor’s failure to perform its obligations contained herein; (c) any claim that Distributor misrepresented its authority or made any contractual commitment not expressly authorized by SES Research; and (d) the payment of any duty, tariff, fee, penalty or cost of any kind arising out of relating Distributor’s shipment or export of Products. Distributor shall notify SES Researchin writing within fifteen (15) days of Distributor’s receipt of knowledge of any accident or incident involving SES Research’s Products which results in personal injury or damage to property, and Distributor shall fully cooperate with SES Researchin the investigation and determination of the cause of such accident and shall make available to SES Researchall statements, reports and tests made by Distributor or made available to Distributor by others. The furnishing of such information to SES Research and any investigation by SES Research of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by SES Research. SES Research shall not be responsible for any settlement or compromise of any third party claim made without SES Research’s written consent.
13. You realize that, since SES Research’s Products are, unless otherwise stated, intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. You assume responsibility to assure that the Products purchased from SES Researchare approved for use under TSCA, if applicable. You have the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using Products purchased from SES Research. You also assume the duty to warn your employees, those associated with you and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products. You agree to comply with instructions, if any, furnished by SES Research relating to the use of the Products and not misuse the Products in any manner. If the Products purchased from SES Research are to be repackaged, relabeled or used as starting material or components of other products, you agree that you will verify SES Research’s assay of the Products. No Products purchased from SES Research shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
14. Returns — Products may not be returned for credit except with SES Research’s permission, and then only in strict compliance with SES Research’s return shipment instructions. You must obtain advance written authorization from SES Research and a written return authorization document in the form then in use by SES Research, prior to returning any Products. Certain items and quantities may not be returned for credit or under any circumstances. These items include, but are not limited to: diagnostic reagents, refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders; products missing labels, parts, or instruction manuals; and books, computer software and equipment removed from their original packaging. Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.
15. Miscellaneous — SES Research’s failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to your order shall not constitute a waiver of SES Research’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies are cumulative and are in addition to any other rights and remedies SES Research may have at law or in equity. Any waiver of a default by you shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any of these terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The section headings herein are for convenience only; they form no part of the Terms and Conditions and shall not affect their interpretation. These Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
16. Governing Law, Disputes — All disputes allegedly arising from the legality, interpretation, application, or performance of your order, the Products or any of these Terms and Conditions shall be governed by the laws of the State of Texas including its conflict of laws principles. Notwithstanding the foregoing, nothing in this section shall prevent SES Research from bringing a claim in any court having jurisdiction over you to enjoin infringement of SES Research’s trademark, patent or other intellectual property rights, or to prevent irreparable harm to SES Research. The parties agree to waive, to the fullest extent permitted by law, any and all rights to a trial by jury in connection with any dispute.
17. Indemnity and Insurance — You shall indemnify and hold SES Research, its corporate affiliates, agents, employees and representatives harmless from and against any and all claims, damages, losses, costs or expenses (including attorney’s fees) resulting from your (a) sale or use of the Products, (b) breach of the provisions and representations contained in the Terms and Conditions or (c) negligence, recklessness or misconduct. You shall maintain: workers’ compensation insurance with statutory limits; (ii) employers’ liability insurance for bodily injury with limits of at least $1,000,000 per occurrence or as required by law; and (iii) comprehensive general liability insurance for death, bodily injury and property damage, including products liability coverage, with limits of at least $5,000,000 per occurrence or as required by law. Upon SES Research’s request, you will provide SES Research with certificates of insurance evidencing such coverage naming SES Research as an additional insured.