Terms and Condition of Sale Agreement
These terms and conditions (also referred to as this “Agreement”) apply to all sales of products and services by LineaRx (“LineaRx”) to its customers (each, a “Customer”), unless LineaRx and Customer have agreed to a separate written contract signed by authorized representatives of both parties (a “Contract”). To the extent the parties have executed a Contract, and there are any conflicts between these terms and those in the Contract, then the Contract shall control. Any provisions printed or otherwise contained in any purchase order, acknowledgement, acceptance or other document from Customer purporting to govern the purchase of products or services from LineaRx which are inconsistent with or in addition to these terms and conditions shall have no force or effect and shall not constitute any part of the Agreement between the parties, unless in writing and signed by an authorized representative of LineaRx. Customer accepts the terms of this Agreement by signing and returning LineaRx’s quotation, by sending a purchase order in response to a quotation, by Customer’s instructions to ship the product or perform the services, or by Customer’s receipt of the products or LineaRx’s commencement of the services.
Customer shall place orders for LineaRx products and/or services using purchase orders consistent with these terms and conditions. All orders shall include the minimum following information: shipping and billing address, catalog number or specific service request, product or service description, size, quantity, and purchase order number. In the event Customer’s purchase order varies from the terms herein, the terms herein shall control, even if Customer’s purchase order states otherwise. All confirmations, invoices and other writings delivered by LineaRx to Customer shall be deemed accepted by Customer together with any terms and conditions set forth thereon unless Customer gives written notice to LineaRx prior to shipment of products or performance of services by LineaRx.
Pricing and Acceptance
All prices are subject to change without prior notice. Pricing provided in a written quotation signed by an authorized LineaRx representative shall be valid during the period specified on the quotation, however, this price may be adjusted by LineaRx due to market conditions, increases in the rate of inflation, or increased production and distribution costs.
The prices stated by LineaRx do not include any sales, use or excise taxes, customs duties, imposts or other assessments of any kind, value-added or similar taxes, which may arise from the manufacture, processing, sale or shipment of the products or services, and Customer shall be solely responsible for any and all such taxes, duties or other assessments. If LineaRx has the legal obligation to collect any such taxes, duties or other assessments, the appropriate amount shall be added to LineaRx’s invoice to Customer and paid by Customer. If, for whatever reason, LineaRx does not collect any such amount from Customer and LineaRx becomes liable to pay any such taxes, duties or other assessments or any penalties related thereto, Customer shall promptly pay such amounts directly to the appropriate governmental authority or, if LineaRx is required to pay or has paid such amounts, shall pay such amounts to LineaRx in accordance with Section 4 below.
All purchase orders from Customer are binding upon Customer and may be accepted by LineaRx, at LineaRx’s option, either by sending an order acknowledgement or confirmation, an invoice, or by delivering the requested products or services to Customer.
The full amount of each invoice for products and/or services hereunder shall be paid within 30 days from the date of the invoice unless otherwise stated on the face of the invoice.
LineaRx reserves the right to assess a late fee equal to one and one-half percent (1.5%) per month or, if lower, the maximum amount permitted by applicable law, on all amounts not paid when due, calculated on a daily basis beginning with the 1st day following the invoice due date. Any check or remittance received from or for the account of Customer may be accepted and applied by LineaRx against any indebtedness owing by Customer, without prejudice to, or the discharge of, the remainder of any such indebtedness regardless of any condition, provision, statement, legend or notation appearing on, referring to or accompanying any check or remittance.
At any time, when in LineaRx’s opinion the financial condition of Customer so warrants, or if Customer fails to make payment when due or otherwise defaults hereunder, LineaRx may change any terms of payment, suspend any credit previously extended to Customer, require partial or full payment in advance and delay shipment until such terms are met, and pursue any other remedies available at law. In such event, if Customer refuses to accept such changes, any outstanding order may be cancelled without any liability to LineaRx. In the event of bankruptcy or insolvency of Customer or in the event any proceeding is brought by or against Customer under any bankruptcy or insolvency laws or their equivalent, LineaRx may cancel any order then outstanding without liability to Customer.
Title; Risk of Loss; Shipping
All products are shipped FOB LineaRx’s facility in Stony Brook, New York, with shipping and handling fees paid by the Customer unless otherwise negotiated by the parties. LineaRx may change freight carriers without notice. If a shipment fails to be delivered as scheduled, Customer shall be responsible for pursuing a claim with the freight company and LineaRx shall provide reasonable cooperation with such endeavor.
Representations as to delivery dates are approximate only, unless LineaRx has given an expressly binding commitment. Partial delivery or performance of products and services under this Agreement shall be permitted unless Customer has expressly stated in writing on the face of the LineaRx quotation or on the Customer’s purchase order that partial delivery will not be accepted.
LineaRx shall not be liable for any delay in performance or nonperformance as the result of war, fire, flood, accidents, acts of God, terrorism, embargoes, cyber incident, acts of third parties, acts of governmental authority or any agency or commission thereof, breakdown of equipment, shortages of material, labor or power, labor strikes, work stoppage or labor unrest, or any other cause beyond LineaRx’s reasonable control. If any of the foregoing events occurs, LineaRx may make deliveries of the products and services proportionate to production and/or postpone the shipment or delivery period of the products and services to a reasonable time after the difficulty has ceased, or LineaRx may, at its option upon notice given to Customer within twenty (20) days after the commencement of any such event, declare this Agreement terminated and all rights and liabilities of LineaRx and Customer, except with respect to products and services previously shipped or performed or in LineaRx’s inventory, shall cease and terminate. LineaRx shall have no obligation to buy in the open market any article to be used in LineaRx’s manufacture or processing when the supplier thereof has defaulted in delivery to LineaRx
If this Agreement calls for more than one shipment of products or delivery of services, each shipment and delivery shall constitute a separate sale under the terms and conditions of this Agreement and Customer agrees to accept each shipment and delivery and pay each invoice in full when due at the contract prices regardless of controversies relating to other delivered or non-delivered products or services. If Customer fails to accept or pay for shipment or delivery, or in the event a dispute arises concerning LineaRx’s performance hereunder, then LineaRx may, without prejudice to any other lawful remedy and without any liability to Customer, (i) suspend further performance hereunder until acceptance or payment by Customer of all previous shipments and deliveries or until the dispute shall have been resolved, or (ii) terminate this Agreement with respect to any unaccepted or undeliverable portion, in which case Customer shall be responsible for any expense or loss sustained by LineaRx in connection with this Agreement.
Termination for Default
If either party shall default in a material manner with respect to its performance or obligations or covenants under this Agreement, (including without limitation, Customer’s failure to pay), upon written notice to the defaulting party and without prejudice to any other rights the non-defaulting party may have, the non-defaulting party may terminate this Agreement. In the event of Customer’s default, Customer shall owe LineaRx a fee for any order shortfalls at the time of termination.
Limited Warranty. LineaRx warrants that, at the time of shipment of the products or performance of the services sold by it are free from defects in materials and workmanship and conform to the specifications, if any, that accompany the products or services. LineaRx agrees to replace any defective or non-conforming product (provided that such nonconformity was not caused by misuse or negligence of Customer) if Customer provides notice to LineaRx within thirty (30) days after receipt. No claim will be honored if Customer fails to notify LineaRx within the period specified. LineaRx further warrants that it has good and free title to the products sold to Customer.
Customer agrees that LineaRx’s sole liability, and Customer’s sole and exclusive remedy for breach of the limited warranty contained in this section, pursuant to any claim of any kind against LineaRx shall be, at LineaRx’s option, (a) replacement of any non-conforming products or reperformance of any non-conforming services or (b) a refund of the price allocable to the non-conforming products or services.
THE LIMITED WARRANTY IN THIS SECTION 7 IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES AND LINEARX HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY THAT ANY USE OF THE PRODUCTS OR SERVICES WILL NOT VIOLATE OR INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF THIRD PARTIES WITH RESPECT TO THE PRODUCTS OR SERVICES.
Limitation of Liability and Remedy
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE AMOUNTS WHICH LINEARX IS CHARGING HEREUNDER DO NOT INCLUDE ANY CONSIDERATION FOR LINEARX’S ASSUMPTION OF THE RISK OF CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH USE OF THE PRODUCTS OR SERVICES BY CUSTOMER. ACCORDINGLY, CUSTOMER AGREES THAT LINEARX SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS OR OTHER ECONOMIC LOSS, ARISING IN CONNECTION WITH CUSTOMER’S USE OF OR INABILITY TO USE THE PRODUCTS OR SERVICES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND INDEPENDENT OF ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED WARRANTY AND REMEDIES PROVIDED HEREUNDER.
IN NO EVENT SHALL LINEARX’s AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS AGREEMENT AND/OR CUSTOMER’S USE OR INABILITY TO USE THE PRODUCTS OR SERVICES, WHETHER UNDER CONTRACT, NEGLIGENCE, TORT, INDEMNITY, WARRANTY, STRICT LIABILITY OR ANY OTHER BASIS EXCEED THE LESSER OF (I) THE COST OF CORRECTING ANY NON-CONFORMITIES IN THE PRODUCTS OR SERVICES OR (II) THE COST OF REPLACING THE PRODUCTS OR REPERFORMING THE SERVICES. IN NO EVENT (INCLUDING UNENFORCEABILITY OF THE ABOVE LIMITATIONS AND INDEPENDENT OF ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED WARRANTY AND REMEDIES PROVIDED HEREUNDER) SHALL LINEARX’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE PURCHASE PRICE PREVIOUSLY PAID BY CUSTOMER FOR THE NON-CONFORMING PRODUCTS OR SERVICES.
The parties acknowledge that the limitations set forth in this Section 8 are integral to the prices charged under this Agreement and that, were LineaRx to assume any further liability other than as set forth herein, such prices would of necessity be set substantially higher. Customer expressly agrees that this limitation of damages and remedies shall constitute the exclusive remedies and measure of damages available to Customer and all other remedies and measures of damages which might otherwise be available under the law of any jurisdiction are hereby waived by Customer.
Without limitation to the generality of the foregoing, LineaRx shall not be liable for any damage or loss caused by the improper or unapproved use of the products.
Customer will defend, indemnify, and hold harmless LineaRx and its respective subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (“Claims”) arising out of or occurring in connection with the negligence or willful misconduct of Customer or its employees or agents, including but not limited to: (i) any misuse or modification of the products or services by Customer or its employees or agents, (ii) any act (or failure to act) by Customer or its employees or agents in contravention of any safety procedures or instructions that LineaRx provides to Customer or its employees or agents or (iii) the failure to store, install, operate, or maintain the products in accordance with the instructions of LineaRx.
Customer shall handle and use the services or the products in conformity with all applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies. Customer understands that some products and/or service may be subject to export control laws. Customer agrees to comply with the export control laws of the United States as well as any other applicable country.
Governing Law and Arbitration
This Agreement and any claims, disputes or causes of action relating to or arising out of this Agreement and/or the products or services shall be construed in accordance with and governed by the laws of the State of New York, without giving effect to the conflict of laws principles thereof. All claims under this Agreement which cannot be amicably settled shall be submitted to confidential binding arbitration as set forth below.
The parties agree that any claim or dispute between them, and any claim by either of party against any agent, employee, successor, or assign of the other, related to this Agreement, products and/or services, including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by confidential binding arbitration before a single arbitrator administered by the American Arbitration Association (“AAA”) under its then current Commercial Arbitration Rules. The parties expressly agree that the arbitration shall be conducted in New York, New York, in the English language, and under New York law. The arbitration award shall be final and may be entered as a judgment in any court having jurisdiction.
Unless otherwise set forth in this Agreement, the sale of a product or rendering of service will not confer upon Customer any license, express or implied, under any patents, trademarks, trade name or other proprietary rights owned or controlled by LineaRx; it being specifically understood and agreed that all rights are reserved to LineaRx.
With respect to any software incorporated in or forming a part of the products hereunder, LineaRx and Customer intend and agree that such software is being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Customer” or similar or derivative words are understood and agreed to mean “licensee”. Notwithstanding anything to the contrary contained herein, LineaRx or its licensor, as the case may be, retains all rights and interest in the software provided hereunder. LineaRx hereby grants to Customer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Customer’s own internal business purposes on the hardware products provided hereunder and to use the related documentation solely for Customer’s own internal business purposes. This license terminates when Customer’s lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. Customer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software. Customer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software provided hereunder without LineaRx’s prior written consent. LineaRx will be entitled to terminate this license if Customer fails to comply with any term or condition of this Agreement.
All non-public, confidential, or proprietary information of LineaRx, including but not limited to specifications, samples, designs, plans, drawings, documents, data, business operations, customer lists, pricing, manuals, discounts or rebates, that LineaRx discloses to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for the use of performing the Agreement, the product or the services, and may not be disclosed or copied unless authorized in advance by LineaRx in writing. Upon LineaRx’s request, Customer shall promptly return all documents and other materials received from LineaRx. LineaRx will be entitled to injunctive relief for any violation of this Section 13, without having to post bond or establish the insufficiency of a remedy at law. This Section 13 does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
Entire Agreement. This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement between Customer and LineaRx as to the subject matter of this Agreement. No amendments or modifications of the terms of this Agreement shall become valid or effective except upon a written instrument duly signed or authorized by LineaRx.
The waiver by a party hereto of any breach of or default under any of the provisions of this Agreement shall not be effective unless in writing and the failure of a party to enforce any of the provisions of this Agreement or to exercise any right there under shall not be construed as a waiver of such right.
This Agreement is divisible, and any provision herein held to be violative of any applicable law, treaties, statutes or regulations will affect only that portion held to be invalid or inoperative, and the remaining portions of this Agreement will remain in full force and effect. In lieu of any such invalid or inoperative provisions, there will be added automatically as a part of this Agreement an enforceable provision as similar in terms to the severed provision as may be possible.
The provisions of this Agreement that may reasonably be interpreted or construed as surviving the expiration or termination of this Agreement shall so survive for the period specified, or if no such period, for the applicable statute of limitations.
Independent Contractors. The parties hereto are independent contractors and nothing in this Agreement will constitute the parties to be partners, nor constitute one party the agent of the other party, nor constitute the relationship to be a joint venture. Neither party shall have, or shall represent that it has, the authority or power to act for or to undertake or create any obligation or responsibility, express or implied, on behalf of, or in the name of the other party.
Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.