OriGen Biomedical – Standard Sales Terms and Conditions
- DEFINITIONS. As used herein: (a) “OriGen” means OriGen Biomedical, Inc shown on the reverse side of this order, and (b) “Buyer” means the party or parties accepting this order and any agent, officer, servant, employee or subcontractor of such party or parties.
- ACCEPTANCE. This order becomes binding when accepted and is expressly conditioned on Buyer´s acceptance without addition or alteration. No modification of this Agreement shall be of any force or effect unless in writing and signed by the party to be charged. OriGen rejects any additional or different terms that Buyer proposes or attempts to impose, and OriGen´s acknowledgment or acceptance of purchase order forms stipulating different conditions shall not modify the terms and conditions hereof. Buyer shall be deemed to have accepted these terms and conditions (and objections to any terms and conditions shall be deemed to have been waived) if Buyer has signed the accompanying purchase order, if OriGen does not receive written notice within ten (10) days of the date of this invoice, or upon Buyer´s acknowledgment on the reverse hereof.
- END USE. Buyer has the sole responsibility to determine the suitability of the goods described on the face hereof for Buyer´s contemplated use. Buyer assumes all risk and liability for loss, damage or injury to buyer´s property or person arising out of the use or possession of the products furnished hereunder.
- SHIPPING TERMS. Buyer shall pay all freight and transportation costs ExWorks shipment to Buyer. OriGen shall select routing and carrier, unless Buyer prepays for shipment with its preferred carrier. Buyer is solely responsible for filing timely and proper claims against carriers if goods are lost or damaged in transit. Buyer assumes and shall bear all risk of loss or damage to any purchased goods sold under this order once the purchased goods are delivered to the carrier. OriGen assumes no responsibility for damage in transit.
- TAXES. In addition to the price quoted or invoiced, Buyer shall pay any tax, duty, custom or other fee that any Federal, State or local governmental authority imposes on this transaction. Buyer shall promptly reimburse OriGen if OriGen is required to prepay such monies.
- FORCE MAJEURE. OriGen shall have no liability for any delays or nonperformance caused by circumstances beyond OriGen´s control including, but not limited to, fire, flood, war, riot, civil commotion, government action, accident labor trouble or shortage, energy shortage, inability to obtain material, equipment, transportation delays, or acts of God.
- TECHNICAL ADVICE. Upon request, OriGen will endeavor to furnish such technical advice as it has available in reference to Buyer´s use of its products. Buyer expressly understands that any technical advice that OriGen furnishes concerning the use of its products is given gratuitously, and OriGen assumes no obligation or liability for the advice or results obtained, all such advice being given and accepted at Buyer´s risk.
- TERMS OF PAYMENT. Buyer agrees to promptly pay all sums agreed to be paid hereunder, together with all costs incurred in the collection of any amount due by suit or otherwise, including reasonable attorneys´ fees. Unless otherwise noted on the face of this order, terms are net cash thirty (30) days from date of invoice. Shipments and deliveries hereunder shall at all times be subject to the approval of OriGen´s credit department. OriGen´s published prices, extras and payment terms are subject to change without notice and those in effect at time of shipment shall apply. OriGen reserves the right to divide an order into separate shipments and separately invoice such shipments, in which case each shipment shall be deemed a separate contract and payment therefore shall be due in accordance with these terms and conditions. If Buyer fails to fulfill the terms of payment, or if OriGen shall ever have any doubt as to Buyer´s financial responsibility, OriGen may, at its option, and without limitation, (i) require full or partial payment in advance, (ii) demand payment and suspend deliveries until payment is received, (iii) decline to make further deliveries except upon receipt of cash or satisfactory security, and (iv) change the payment terms and credit limits of the Buyer. Buyer´s failure to furnish payment upon demand shall constitute a repudiation of this contract, and OriGen shall be entitled to receive reimbursement for its reasonable cancellation charges. OriGen shall not be liable for any of Buyer´s costs or expenses arising out of the exercise of any of OriGen´s rights hereunder.
- CANCELLATION CHARGES. Buyer shall be liable for the payment of reasonable cancellation charges, which shall not be less than 10% of the price of the goods cancelled, but shall include, without limitation, the following: (a) all costs and expenses that OriGen incurs for or on account of the goods cancelled and the cancellation; (b) any and all liabilities, costs, damages and expenses that OriGen incurs by or as a result of commitments incident to the goods involved including, without limitation, commitments made or liabilities assumed to any supplier of such goods and materials used in such goods; and (c) any and all indirect charges as well as a reasonable profit.
- CANCELLATION. Accepted orders cannot be cancelled, in whole or in part, without OriGen´s written consent. If Buyer requests cancellation of orders for products which have been manufactured in whole or in part, such cancellation shall be at OriGen´s option and subject to cancellation charges. OriGen´s failure to meet estimated ship dates will not be sufficient cause for cancellation of orders.
- WARRANTY DISCLAIMER. OriGen Biomedical warrants that reasonable care has been used in the manufacture of these devices and that they are free from defects in workmanship or materials at the time of shipment from OriGen. OriGen’s sole obligation shall therefore be to repair or replace any product which it determines was defective at the time of shipment. Because no product is completely effective under all circumstances, and because the actual use and handling of this device is beyond our control, OriGen cannot warrant for a good effect or against a bad effect in the application and use of these products. The buyer therefore assumes all liability arising from any cause for damages resulting from use, misuse or resterilization of these products. OriGen therefore gives no warranty of merchantability or fitness for a particular purpose. OriGen shall not be liable for incidental or consequential loss, damage or expense resulting from the use or application of these products. This warranty is in lieu of all other warranties, whether implied, express, oral or written, and no individual has the authority to vary the
terms of this warranty.
- DAMAGES. Buyer´s exclusive remedy from claims arising from defective or nonconforming goods shall be limited to replacement thereof or refund of a portion of the purchase price, at OriGen´s option. OriGen shall not be responsible or liable for consequential or other damages arising out of or occurring in connection with the sale, delivery, use, performance, or service of the goods sold under this agreement. Origen shall not be liable for any lost profits or for any claim or demand against origen by any other party. In no event will Origen be liable for special, indirect or consequential damages, even if OriGen has been advised of the possibility of such damages, OriGen´s aggregate liability for damages under this agreement, whether arising from or based upon breach of warranty, breach of contract, tort or other cause of action, shall in no case exceed the purchase price that buyer pays for the particular goods involved.
- SECURITY INTEREST. Buyer grants to OriGen a first priority purchase money security interest in all products purchased hereunder, and in each and every item thereof, including replacements, proceeds, and products thereof, to secure payment of all amounts and performance of all obligations due hereunder. Buyer shall execute, at OriGen´s request, all financing statements that OriGen deems necessary or desirable to perfect OriGen´s security interest. Buyer authorizes OriGen to sign on Buyer´s behalf, and file, a copy of the security agreement or a financing statement with the appropriate authorities to perfect OriGen´s security interest in all purchased goods. OriGen shall have all rights and remedies of a secured party under the UCC in effect in any applicable jurisdiction.
- RETURNS. No merchandise can be accepted for credit unless OriGen has previously authorized the return. Merchandise must be returned freight prepaid within thirty (30) days of receipt. A 20% restocking charge may apply to returned merchandise, but no returns are permitted for Custom (non-stock) products.
- OPTION TO ACCELERATE. OriGen shall have the right on written notice to Buyer to demand immediate payment of amounts due hereunder if OriGen believes in good faith that the prospect of Buyer’s payment or performance is impaired. Buyer´s acceptance of products shall constitute an express representation at Buyer is not then insolvent within the meaning of Title 11, United States Code or similar federal or state law.
- SEVERABILITY. The provisions of this Agreement are severable and if any provision is invalid, void or unenforceable in whole or in part for any reason, the remaining provisions shall remain in full force and effect.
- NON-WAIVER. OriGen´s failure or refusal to insist upon strict performance of any provisions of this Agreement shall not be deemed a waiver of OriGen´s rights or remedies, or a waiver by OriGen of any subsequent default by buyer in the performance of or compliance with the terms of this Agreement.
- CAPTIONS. The captions in this Agreement are included for convenience and general reference only and shall not be construed to describe, define or limit the scope or intent of the provisions of this Agreement.
- ASSIGNMENT. Buyer may not assign this Agreement in whole or in part and any attempted assignment shall be void and of no effect.
- ENTIRE AGREEMENT. This instrument constitutes the entire agreement and understanding of the parties and supersedes all prior agreements and understandings, written and oral, relating to the subject matter hereof. No agreements, understandings, restrictions, warranties, or representations exist between or among the parties other than those expressly set forth in this document.
- CLAIMS. Claims for errors, shortages, defective goods and any other claims of Buyer relating to the goods must be made in writing within thirty (30) days after receipt of the goods and must refer to the date and number of the invoice. OriGen shall have a reasonable opportunity to investigate all claims.
- APPLICABLE LAW AND JURISDICTION. Buyer and OriGen agree that interpretation of and performance under these contract terms and conditions, as well as all other aspects of the transaction contemplated by these terms and conditions, shall be governed by the laws of the State of Texas. Buyer and OriGen further agree that any action at law, suit in equity or other judicial proceeding with respect thereto must be brought and maintained in the federal or state courts of record situated in the State of Texas.
- LATE PAYMENT AND COLLECTION COSTS. If OriGen decides to place Buyer´s account for collection, Buyer shall pay all costs and expenses thereof, including reasonable attorneys´ fee. Should Buyer fail to pay any amount that Buyer is required to pay OriGen, Buyer shall pay to OriGen interest on the delinquent payment from the due date thereof until paid at the rate of 1½% per month (18% per year), but in any case not to exceed the maximum lawful rate under any applicable law.
- GOVERNMENTAL REQUIREMENTS. Any provisions required to be included in a contract of this type by any applicable federal, state or local law, ordinance or governmental rule, regulation, order or over governmental requirement shall be deemed incorporated herein as if fully set out.
GP08, Rev 00