Standard Terms and Conditions of Sale
The terms and conditions of sale (the “Terms”) contained herein apply to all quotations made and purchase orders received by Somru BioScience Inc. (“SOMRU”) regarding the products sold by SOMRU (“Products”). THE ACCEPTANCE OF ANY OR ALL OF THE BUYER’S (“BUYER”) PURCHASE ORDERS IS CONDITIONAL UPON BUYER’S ASSENT TO THESE TERMS IN THIS DOCUMENT IN LIEU OF THE TERMS CONTAINED IN BUYER’S PURCHASE ORDER. SOMRU hereby rejects all provisions contained in communications from Buyer that conflict with or are inconsistent with the terms contained herein. SOMRU’s failure to object to any of the provisions contained in Buyer’s documentation shall not be deemed a waiver of these provisions.
- Prices/Taxes: Buyer will be billed at the prices stated at the time of order acceptance. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions, which are not part of the original price quotation. If the prices are based on the purchase of a particular quantity of goods and Buyer fails to purchase that quantity which would justify the pricing granted, SOMRU shall have the right, in addition to any other remedies at law or equity, to recover from Buyer the difference between the stated price and SOMRU’s standard prices for such goods in the quantity actually purchased by Buyer. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of customs, duties or taxes, and Buyer shall be responsible for all such applicable duties and taxes (exclusive of taxes on SOMRU’s income). If exemption from such taxes is claimed, Buyer must provide a certificate of exemption at the time the Purchase Order is submitted to SOMRU, and Buyer agrees to indemnify SOMRU for any unpaid taxes in the event such exemption is not applicable.
- Terms of Payment: Credit terms must be previously approved by SOMRU, in which case terms of payment are net thirty (30) days from the date of invoice. Any late payments are subject to a finance charge of the lesser of 1.5% per month (18% per annum) or the maximum amount allowed by law. SOMRU reserves the right to require payment in advance and otherwise to modify credit terms. Buyer agrees to accept partial shipments in satisfaction of a single Purchase Order; when partial shipments are made, pro-rata payments shall become due in accordance with the designated terms for each shipment. If SOMRU accepts partial payment in an amount less than the full amount of any invoice, such acceptance shall neither constitute a waiver of SOMRU’s right to collect the balance nor an accord and satisfaction, notwithstanding SOMRU’s endorsement of a check or other instrument. In the event of Buyer’s bankruptcy or insolvency, SOMRU shall be entitled to cancel any order then outstanding without waiving any claims in law or equity. If Buyer fails to comply with these payment terms, SOMRU reserves the right to withdraw credit, suspend or cancel performance under any or all Purchase Orders or agreements and all Buyer’s obligations to SOMRU shall become immediately due and payable. Buyer shall have no right to withhold any amount due SOMRU under these Terms because of a claim Buyer may have against SOMRU.
- Title and Delivery: Shipment shall be EXW (Incoterms 2010) SOMRU’s location and the manner of shipment shall be at SOMRU’s option, unless specified by Buyer at the time of order acceptance. Buyer shall be responsible for all shipping charges, including but not limited to shipping, transportation, duties and insurance costs. Buyer shall inspect the Products upon delivery and shall notify SOMRU within three (3) days of any damage or defective Products or under-shipment by SOMRU. All claims for loss or damage during shipment must be filed by Buyer with the carrier. Claims against SOMRU for shortages occurring before delivery to carrier are subject to Buyer’s compliance with SOMRU’s RMA policy, incorporated by reference herein. The sale of any of SOMRU’s products to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property license whatsoever, except as may be granted by SOMRU in the materials which accompany the Products upon delivery. SOMRU expressly reserves its rights under any such claim, and asserts that additional restrictions may apply to the use of the Products, as set forth in the materials which accompany the Products. It is the responsibility of Buyer to arrange for and obtain insurance coverage for the Products, if so desired.
- Warranty/Disclaimers: SOMRU warrants that the Products delivered hereunder will be in accordance with SOMRU’s published specifications under normal use for a period not to exceed the product’s expiration or three hundred and sixty five days (365) days from shipment to Buyer. Deviations from published specifications which do not materially affect performance of the Products covered hereby shall not be deemed to constitute defects of material or workmanship or a failure of the Products to comply with such specifications. This warranty does not apply to any specification required by Buyer or any Product which has been subject to misuse or neglect, or damaged by accident or that has been modified by anyone without SOMRU’s authorization. The warranties contained herein shall extend only to Buyer and shall not apply to Buyer’s affiliates or customers. SOMRU’S LIABILITY SHALL BE LIMITED SOLELY TO THE REPLACEMENT OR REFUND OF AMOUNTS PAID FOR THE PRODUCT UNDER THE WARRANTY CLAUSE HEREIN IF THE APPLICABLE WARRANTY PERIOD DESCRIBED HAS NOT EXPIRED. If the warranty period has expired, SOMRU shall not be liable for any damages of any kind whatsoever. BUYER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS CONTAINED IN THIS WARRANTY CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO IT WITH REGARD TO THE PRODUCTS. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS SECTION, SOMRU EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM OR TRADE AND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE PRODUCTS FURNISHED BY SOMRU HEREUNDER. Certain jurisdictions do not permit the disclaimer of certain warranties, so this limitation may not apply to the Buyer.
- Limitation of Liability: IN NO EVENT SHALL SOMRU BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER RESULTING FROM SOMRU’S PERFORMANCE OR FAILURE TO PERFORM UNDER THESE TERMS OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS SOLD PURSUANT HERETO. IN NO EVENT SHALL SOMRU’S LIABILITY EXCEED THE U.S. DOLLAR AMOUNT EQUAL TO THE AMOUNT PAID BY BUYER FOR THE COST OF THE PRODUCTS PAID BY BUYER UNDER THE APPLICABLE INVOICE GIVING RISE TO A CLAIM.
- Rescheduling/Cancellation: An order pursuant to these Terms shall not be rescheduled or cancelled by Buyer (in whole or in part) except with the prior written consent of SOMRU. SOMRU reserves the right to cancel any orders placed by Buyer, or to refuse or delay shipment thereof, if Buyer: (a) fails to make any payment as provided in these Terms or under the terms of payment set forth in any invoice or otherwise agreed to by SOMRU and Buyer, (b) fails to meet reasonable credit or financial requirements established by SOMRU, including any limitations on allowable credit, or (c) otherwise fails to comply with these Terms. Buyer may not cancel for SOMRU’s breach unless Buyer has provided SOMRU with forty five (45) days written notice alleging such breach and such breach has not been remedied by SOMRU within such time period.
- Returns: Any Product return shall be returned to SOMRU ONLY upon assignment of a Return Merchandise Authorization (RMA) Number by SOMRU. Any Product returned to SOMRU without a RMA Number will be refused and returned to Buyer at Buyer’s expense. Returns will not be accepted by SOMRU for any reason other than for: (i) verifiable Product defects or damage occurring within the warranty period, or (ii) mishandled shipments directly caused by SOMRU. Return requests involving mishandled shipments must be brought to SOMRU’s attention within five (5) days of original ship date. SOMRU reserves the right to reject any request regarding mishandled shipments submitted more than three (3) days after courier delivery date.
- Indemnification: In the event of a claim by a third party of infringement of proprietary rights, trademarks, or patents, resulting from compliance with Buyer’s designs, specifications, or instructions, Buyer will defend, indemnify and hold SOMRU harmless against any expense or loss ensuing from such a claim.
- Security Agreement: Buyer hereby grants to SOMRU, its successors and assigns, a security interest in the Products to secure payment of the purchase price of the Products. Default in payment of such price or any part of the price when due shall permit SOMRU, in its sole discretion, to declare all obligations of Buyer immediately due and payable, and in such event, SOMRU shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, SOMRU is expressly authorized, at its discretion, to file one or more financing statements or other notices under applicable law naming Buyer as debtor and SOMRU as secured party. Buyer agrees to execute such documents requested by SOMRU to record and otherwise perfect this security interest.
- Export Controls: Buyer acknowledges that all shipments by SOMRU are or may be subject to restrictions and limitations imposed by Canada export controls, trade regulations and trade sanctions. Buyer at all times will comply with such sanctions, controls and regulations and will cause compliance with such sanctions, controls and regulations in its use and disposition of the Products. With respect to each Product shipment pursuant to these Terms, Buyer will obtain and supply to SOMRU in writing all information required by SOMRU to obtain any Canadian export license, permit, approval or documentation applicable to such shipment. Notwithstanding any contrary provision in these Terms, SOMRU will have no obligation to make any shipment to Buyer until it has received all such information and has obtained the applicable licenses, permits, approvals or documentation for shipment, if any. If SOMRU learns, or has reasonable cause to believe, or if any branch or agency of the government of the Canada claims, that a violation of any applicable trade sanctions, export controls or trade regulations has occurred or is likely to occur because of any shipment, SOMRU may, in addition to any other remedy it may have, suspend all shipments to Buyer until: (a) SOMRU is satisfied that such violation did not occur or has ceased to occur, or (b) such claim is withdrawn or otherwise resolved in favor of SOMRU. Neither Buyer, not its employees, agents, subcontractors, officers or representatives, shall cause or permit any shipment of the Products to be made by Buyer or by anyone acting on behalf of Buyer or to whom Buyer may sell the Products, to any country for which a validated export license is required by Canada, or to which shipment is prohibited under trade regulations or trade sanctions of Canada. Buyer will indemnify and will hold SOMRU harmless from and against any claim, loss or liabilityt arising out of any breach of the foregoing covenants contained in this section.
- Force Majeure: SOMRU shall not be liable for any loss, delay or failure to perform resulting from any circumstance, direct or indirect, reasonably beyond its control including, without limitation, fire, flood, accident, explosion, mechanical breakdown, strike or other labor trouble, plant shutdown, unavailability of or interference with the usual means of transporting the Product or compliance with any law, regulation, order, recommendation or request of any governmental authority. In addition, SOMRU shall be so excused in the event it is unable to acquire from its usual sources and on terms it deems to be reasonable, any material necessary for manufacturing the Product. In the event that there should be a shortage of any Product, SOMRU may apportion its available Product among itself, its affiliates and all its customers in such equitable manner as it deems fair and reasonable. Any delivery date may be extended, at SOMRU’s option, to the extent of any delay resulting from any force majeure event.
- Confidential Information: Any documentation or data supplied by SOMRU to Buyer and marked “confidential” are proprietary and confidential to SOMRU. SOMRU retains for itself all proprietary rights to all designs, engineering details, and other data pertaining to any Product sold. Buyer agrees to use its best efforts to maintain the confidentiality of any proprietary documentation, data, or price quotes (whether marked “confidential” or not) supplied to it and not to disclose or use such documentation, data, or price quotes in any manner inconsistent with the purpose for which it was disclosed. SOMRU hereby grants Buyer a nonexclusive, limited license to use, copy, modify or otherwise utilize any materials or intellectual property provided by Buyer to SOMRU for purposes of fulfilling Company’s obligations herein.
- General: Buyer shall NOT assign this order or any interest therein or any rights thereunder without the prior written consent of SOMRU. Any notice or report required or permitted by these Terms shall be in writing and shall be deemed given if delivered personally or if sent by either party to the other by confirmed overnight delivery or by certified or registered mail, return receipt requested, postage prepaid, addressed to the other party to its address as set forth on the Purchase Order or at such other address as such party shall designate by notice hereunder. Where Buyer is giving notice to SOMRU, all notices shall be sent to the attention of SOMRU’s President. These Terms shall be governed by and construed according to the laws of the province of Prince Edward Island without regard to conflict of laws provisions. Buyer hereby submits to the exclusive jurisdiction of the courts located in the province of Prince Edward Island, both federal and provincial, and agree that any legal proceeding arising out of these Terms shall be conducted solely in such courts. No modifications to these Terms shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein. Any provision hereof which is prohibited or unenforceable shall, as to such jurisdictions, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of such provision in any other jurisdiction. No waiver of any breach of any provision of these Terms shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. These Terms constitute the entire agreement between Buyer and SOMRU with respect to the Products purchased, and supersede all prior or contemporaneous negotiations, understandings and agreements.