These Terms and Conditions of Sale (“Terms and Conditions”) shall govern the sale and license to the purchaser (“Buyer”) of probes, assays, reagents, instruments, software, and other products and related services (“Products”) by Avida Biomed Inc., Inc. (“AVIDA”) named on the invoice or acknowledgement provided to Buyer in connection therewith. Purchase orders, once accepted by AVIDA, are not subject to cancellation or modification by Buyer without AVIDA’s written consent.
Prices exclude all insurance, freight, taxes, fees, duties and levies. Buyer shall pay all such expenses in addition to the applicable price.
AVIDA will ship via carrier selected by AVIDA. Delivery dates set forth on a purchase order accepted by AVIDA are subject to change and are predicated on conditions existing at that time. AVIDA does not guarantee any delivery dates and shall not be responsible for any loss or damage arising out of any delay in delivery irrespective of the cause of such delay. AVIDA may make partial deliveries. For Deliveries Outside US: Tender will be FCA our shipping point. Title (except for software in which case AVIDA shall retain title) and risk of loss or damage will pass to Buyer upon delivery of the Products to the carrier.
Any claims for damaged, missing or defective Product must be reported to AVIDA by Buyer in writing within five (5) days from the date of receipt of such Product. For any valid claim made, AVIDA shall, at its sole discretion, either repair or replace the Product. The foregoing shall be Buyer’s sole and exclusive remedy for damaged or missing Products, and, except for express warranty rights set forth in these Terms and Conditions, for defective Products.
Buyer will be invoiced at the time of shipment of each Product. Buyer shall make payment in full to AVIDA within thirty (30) days after the date of the invoice. AVIDA may charge an interest on late payments until the date of payment at the rate of one and one-half percent (1.5%) percent per month or the maximum rate allowed by applicable law. AVIDA may decline to make further shipments of Products without advance notice if Buyer fails to make any payment when due, or if the financial condition of Buyer becomes unsatisfactory to AVIDA. AVIDA may elect to retain a security interest in all Products sold to Buyer to secure all of Buyer’s obligations to AVIDA under these Terms and Conditions, and Buyer will execute any documents necessary to create and perfect this interest. Sales by AVIDA shipped outside the U.S. may require payment on an irrevocable letter of credit reasonably acceptable to AVIDA.
For new instruments that are not Pre-release Products (as defined below), AVIDA warrants to and only to Buyer for (a) thirteen (13) months from the date of shipping such instruments or (b) one (1) year from the date of installation or (c) the period specified in the AVIDA sales quote for limited-life parts, whichever occurs first among (a), (b) and (c), that the software and instruments are free from defects in material and workmanship and conform to AVIDA’s published specifications in all material respects.
For refurbished instruments that are not Pre-release Products, AVIDA warrants to and only to Buyer for (a) ninety (90) days from the date of installation or (b) the period specified in the AVIDA sales quote for limited-life parts, whichever occurs first between (a) and (b), that the software and instruments are free from defects in material and workmanship and conform to AVIDA’s published specifications in all material respects.
Service will be provided pursuant to AVIDA’s standard service terms and conditions.
Notwithstanding anything to the contrary, AVIDA’s sole and exclusive liability (and Buyer’s sole and exclusive remedy) under the foregoing warranties shall be to (a) repair or replace affected software and/or instrument(s) or (b) provide Buyer a refund for the affected software and/or instrument(s), as determined by AVIDA in its sole discretion. Nonconforming instruments will be serviced at Buyer’s facility or, at AVIDA’s option, AVIDA’s or its supplier’s facility. If service is performed at AVIDA’s or its supplier’s facility, AVIDA will bear shipping costs.
For probes or reagents reasonably determined by AVIDA to be defective, independent of user error, such defective probes or reagents may be replaced by AVIDA on a 1:1, like-kind basis at no cost to Buyer provided that such defective probe arrays or reagents were used by Buyer prior to their expiration date, or if there is no expiration date, the defective probe assays or reagents were used within six (6) months of receipt, and the defect was promptly reported with appropriate detail to AVIDA’s technical support.
AVIDA, may, in its own discretion, furnish technical assistance and information with respect to the Products. AVIDA is under no obligation to provide technical assistance or information about AVIDA products. Any suggestions by AVIDA regarding use, selection, application or suitability of the Products shall not be construed as a warranty.
Except as provided above, any warranty provided herein does not apply to other consumables, or to any defect caused by failure to provide a suitable storage, use, or operating environment, use of non-recommended reagents, spills, or the use of the Products for a purpose or in a manner other than that for which they were designed, modifications or repairs done by Buyer, or any other abuse, misuse, or neglect of the Products. This warranty applies only to Buyer, and not third parties. The foregoing is not intended to limit any warranty extended to Buyer by a third party original equipment manufacturer of a Product or component thereof, provided that any remedy received by Buyer under any such warranty shall relieve AVIDA of its obligations with respect to the subject of such remedy. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AVIDA AND ITS SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE
Pre-release Products (Not Applicable to Products Marketed for IVD Use)
If any Product is a beta, technology access, early access, or other precommercial release version ("Pre-release Product"), then this Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in these Terms and Conditions, this Section shall govern such other term(s) and condition(s) with respect to the Pre-release Product, but only to the extent necessary to resolve the conflict. Buyer acknowledges that the Pre-release Product is a pre-release version, does not represent final product from AVIDA, and may contain defects, bugs, errors and other problems that could cause system or other failures, sample loss and data loss. CONSEQUENTLY, THE PRE-RELEASE PRODUCT IS PROVIDED TO YOU "AS IS", AND AVIDA DISCLAIMS ALL WARRANTIES (INCLUDING THE LIMITED WARRANTY SET FORTH ABOVE) AND ALL LIABILITY OBLIGATIONS TO BUYER OF ANY KIND. Buyer acknowledges that AVIDA has not promised or guaranteed to Buyer that Pre-release Product will be announced or made available to anyone in the future, that AVIDA has no express or implied obligation to Buyer to announce or introduce the Pre-release Product, and that AVIDA may elect not to introduce a product similar to or compatible with the Pre-release Product. Accordingly, Buyer acknowledges that any research or development that Buyer performs using the Pre-release Product or any product associated with the Pre-release Product is done entirely at Buyer’s own risk.
Products of AVIDA which are or may be drugs, food additives or diagnostic reagents, as described in the federal food, drug and cosmetic act, are for investigational use only in laboratory research animals or testing in vitro, and are not for drug, new drug, veterinary drug, food, food additive or human use. Unless otherwise indicated in writing signed by AVIDA, all Products are distributed and sold for chemical purposes only, not for drug use or for application to or ingestion by humans or for commercial horticulture use, for pesticide use, for application to or ingestion by animals or for veterinary drug use. Buyer shall ensure that all products sold by AVIDA to Buyer is used by qualified professionals only. The burden for safe use and handling of all Products sold by AVIDA to Buyer is entirely the responsibility of Buyer and anyone who purchases the goods from Buyer and uses them. Absence of hazardous warnings does not imply nontoxicity.
AVIDA does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any United States or other patents covering the use thereof in combination with other products or in the operation of any process. Additionally, Buyer shall defend, indemnify and hold harmless AVIDA Group (as defined below) from and against any and all legal action, claims, suits, demands, liabilities, expenses and/or losses, including reasonable legal expenses and attorneys’ fees, that may arise directly or indirectly from (a) the synthesis of an ordered “By Request” product, or (b) Buyer’s use or incorporation of a Product manufactured by AVIDA.
Products Marketed for Research Use Only
Products marketed by AVIDA for research use only do not have the approval or clearance of the U.S. Food and Drug Administration (“FDA”) or other regulatory approval, clearance or registration for in vitro diagnostic (“IVD”) use. No license is conveyed or implied for Buyer to use, and Buyer agrees not to use, such Products in any manner requiring FDA or other regulatory approval, clearance or registration relating to IVD use. Because AVIDA’s goods that are intended for research purposes may not be on the Toxic Substances Control Act (“TSCA”) inventory. Buyer assumes responsibility to ensure that the goods purchased from AVIDA are approved under TSCA, if applicable. Consistent with Buyer’s agreement to comply with all TSCA and Research and Development substance exemption (the “R&D exemption”) requirements applicable to the purchase, Buyer agrees and warrants that Buyer will comply with all the requirements necessary to 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. Buyer also agrees and warrants that Buyer will use or sell (if otherwise so authorized) the R&D substance exclusively for R&D purposes or specified exempt commercial purposes. Buyer specifically agrees and warrants that Buyer will not sell or distribute the R&D substance to consumers.
Products Marketed for In Vitro Diagnostic Use
Products marketed by AVIDA for IVD use have been cleared by the FDA, and CE marked in the European Union, for IVD use. No license is conveyed or implied for Buyer to use, and Buyer agrees not to use, such Products in any manner requiring other regulatory approval, clearance or registration relating to IVD use.
Buyer is not licensed to, and shall not: (a) resell any AVIDA-supplied probes or reagent, (b) transfer, or distribute any AVIDA-supplied probe or reagent, directly or indirectly, to any third party for any purpose or use, except as otherwise approved by AVIDA in writing; (c) use or allow anyone to use any AVIDA-supplied probe or reagent more than once, or dilute any AVIDA-supplied reagent unless instructed to do so in the User Manual of the product; or (d) provide a fee-for-service or other non-collaborative sample processing service to third parties using an AVIDA-supplied probe or reagent (e.g., wherein the service provider offers standardized services for standardized fees to multiple third parties, the customer does not contribute scientifically to the services performed, and all rights to the results and discoveries derived therefrom are transferred to the customer).
Except to the extent prohibited by applicable law, Buyer hereby grants to AVIDA a non-exclusive, worldwide, fully sublicensable, fully paid-up, royalty-free, irrevocable, perpetual license to all Product Improvements. Buyer shall promptly disclose any Product Improvements to AVIDA. For purposes of this Section, a “Product Improvement” shall mean any invention conceived or reduced to practice in the course of using a Product that relates to (a) design, manufacturing, layout or packaging of nucleic acid probes or probe arrays; (b) manual or automated assay techniques that may be used in connection with probes or similar products (including techniques related to nucleic acid extraction, amplification, labeling, dilution and other processes); or (c) software analysis techniques relating to the extraction or storage of data generated using probe arrays. “Product Improvements” shall not include data generated using Products or discoveries derived therefrom (except as expressly set forth in (a) – (c) above).
Target Sequence Confidentiality for Custom Products
If Buyer discloses to AVIDA a confidential set of nucleic acid or peptide target sequences (“Target Sequences”) for which Buyer desires AVIDA to design and manufacture custom probes or custom nucleic acid assay pursuant to these Terms and Conditions, upon Buyer’s written request, AVIDA agrees to use reasonable efforts not to disclose or use such confidential information disclosed to it by Buyer for any purpose other than designing and manufacturing such Products, supplying them to Buyer and/or other parties designated by Buyer, otherwise performing its obligations to Buyer (and any obligations AVIDA may have to such other parties), or for other purposes authorized by Buyer. The provisions of this Section shall not apply to any information which (a) is known or used by AVIDA prior to Buyer’s disclosure to AVIDA; (b) is disclosed to AVIDA by a third party under no obligation of confidentiality to Buyer; (c) is or becomes published or generally known to the public through no fault of AVIDA; or (d) is independently developed without reference to such confidential information disclosed to AVIDA by Buyer. Notwithstanding the foregoing, AVIDA shall be permitted to disclose such information in order to comply with applicable laws, a court order, or governmental regulations, provided that AVIDA has provided Buyer with prior notice of such disclosure, to the extent reasonably practicable and allowed by applicable law. AVIDA’s obligations under this Section shall terminate three (3) years following the date of disclosure.
Target Sequence Responsibility
Buyer shall be fully responsible for the Target Sequences, including the obtaining of all required rights and consents. Buyer shall indemnify and hold harmless AVIDA and its employees, officers, directors, representatives, contractors, suppliers and any affiliate of the foregoing (the “AVIDA Group”) from and against any and all legal action, claims, suits, losses, liabilities, demands, damages, costs and expenses, including without limitation reasonable legal fees and expenses, arising from or relating to the Target Sequences or their use. Buyer agrees to fully cooperate with the AVIDA Group and its counsel in its defense and preparation for any such action or proceeding.
EXCEPT TO THE EXTENT CAUSED BY AVIDA’s GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR REQUIRED BY APPLICABLE LAW, AVIDA SHALL HAVE NO LIABILITY FOR ANY LOSS OF USE OR PROFITS, PROCUREMENT OF SUBSTITUTE GOODS OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF AVIDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVIDA’s AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO AVIDA FOR THE PRODUCTS. BUYER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE PRODUCTS AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.
Buyer acknowledges that the Products and related materials may be subject to export controls under the U.S. Export Administration Regulations and related U.S. laws. Buyer will (a) comply strictly with all legal requirements established under these controls, (b) cooperate fully with AVIDA in any official or unofficial audit or inspection that relates to these controls and (c) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product or related technical documents or materials or any direct product thereof to any country (or to any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of AVIDA and the applicable U.S. Government agency.
Each party shall be and act as independent contractor and not as partner, employee, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. Buyer may not assign its rights or obligations under these Terms and Conditions without the consent of AVIDA. AVIDA may assign its rights and obligations hereunder without consent to an affiliate or to a successor to all or substantially all of AVIDA’s business or assets. The failure of either party to enforce its rights under these Terms and Conditions at any time for any period shall not be construed as a waiver of such rights. In the event that any provision of these Terms and Conditions shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect and enforceable. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). The sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in California (provided that AVIDA may elect, at its option, to bring action in the courts for the location of Buyer’s principal office) and Buyer consents to the jurisdiction of such courts with respect to any such action. In any action or proceeding arising out of these Terms and Conditions, the prevailing party will be entitled to recover costs and attorneys’ fees.