INTRODUCTION
These Precision Lab Supplies, LLC d/b/a CancerControls.com (“Seller”) Terms and Conditions shall apply to all products, including quotations made and purchase orders accepted, and any other products furnished, supplied by, or ordered from, Seller (“Goods”) by the purchaser (“Buyer”).
1. ACCEPTANCE
Seller’s shipment of the goods subject to this Purchase Order (“Goods”) shall be deemed an effective mode of acceptance of this Purchase Order. Any acceptance of this Purchase Order is limited to acceptance of the express terms contained hereof.
2. PRICE & PAYMENT
Buyer shall purchase the Goods from Seller at the price[s] set forth in the Quote most recently furnished by the Seller. Buyer shall pay for all Goods ordered by credit card prior to shipment of the Goods. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. This Purchase Order is valid for 30 days, after which Seller may amend Buyer’s prices.
3. SHIPPING
Delivery shall be made F.O.B. shipping point. Buyer is responsible for any risk of loss after delivery, and all claims by Buyer for loss or damage occurring after delivery must be brought against the carrier and not Seller. Seller shall not be liable or responsible for any failure or delay in delivering Goods, including any consequential, special, or incidental damages customer may suffer as a result of such delay. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased hereunder.
4. INSPECTION AND REJECTION OF NONCONFORMING GOODS
a) Buyer shall inspect the Goods within ten (10) days of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) the Goods shipped are different than identified in this Purchase Order; or (ii) the label or packaging of the Goods incorrectly identifies its contents.
b) If Buyer timely notifies Seller the receipt of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility identified in this Purchase Order. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to a delivery point designated by Buyer.
c) Buyer acknowledges and agrees that the remedies set forth in Section 4(b) above are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided thereunder, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
5. LIMITED WARRANTY
Seller warrants that the Goods will perform in accordance with the relevant product specifications as long as the Goods are used per the instructions for use and before the expiry date listed on the label. Seller reserves the right to change the design or specifications of the Goods at any time. Seller will provide Buyer prior notice of any change in design or specification that materially affects product performance. Seller further warrants that, to its knowledge, the Goods do not infringe the patent rights of third parties. The sole and exclusive warranty for any product provided directly or indirectly by a third party will be the standard warranty provided by the third party, and Seller will have no responsibility or liability relating to such product. Buyer will hold Seller harmless from any responsibility or claims that arise from the use of non-Seller products.
6. LIMITATION OF LIABILITY
SELLER SHALL HAVE NO LIABILITY UNDER ANY CIRCUMSTANCES FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF SELLER, REGARDLESS OF THE BASIS OF THE CLAIM, SHALL BE LIMITED TO THE CONSIDERATION ACTUALLY PAID BY CUSTOMER FOR THE GOODS WHICH GAVE RISE TO THE CLAIM. THIS LIMIT OF LIABILITY IS A MATERIAL TERM OF THIS AGREEMENT AND SELLER’S AGREEMENT TO PROVIDE GOODS TO CUSTOMER IS DEPENDENT UPON ITS INCLUSION.
7. INDEMNITY
Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees relating to or arising from (i) any claim made by a third party relating to Buyer’s use of the Goods purchased from Seller or (ii) Buyer’s negligence, willful misconduct or breach of these Terms and Conditions. Buyer shall not enter into any settlement without Seller’s prior written consent.
8. NON-DELIVERY
The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery, unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods unless Buyer gives written notice to Seller of the non-delivery within ten (10) days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
9. TERMINATION
In addition to any remedies that may be provided in this Agreement, Seller may terminate this Purchase Order with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due hereunder and such failure continues for thirty (30) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
INDEMNIFICATION
Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees relating to or arising from (i) any claim made by a third party relating to Buyer’s use of the Goods purchased from Seller or (ii) Buyer’s negligence, willful misconduct or breach of these terms and conditions. Buyer shall not enter into any settlement without Seller’s prior written consent.
10. CONFIDENTIAL INFORMATION
Each Party may receive from time to time confidential and proprietary information of the other Party, including designs, drawings, materials, manufacturing specifications, trade secrets, business and financial information and other confidential information (“Confidential Information”). Each Party will refrain from disclosing any Confidential Information of the other Party, except for the strict purposes or activities specifically authorized in this Agreement or if required by law. Such Confidential Information shall solely be used in connection with the performance of this Agreement and shall not be used for any other purpose. Each Party will use all reasonable efforts to maintain the confidentiality of the Confidential Information in its possession or control and shall be liable for the disclosure or misuse of such Confidential Information of the other Party by itself or any related persons.
11. ASSIGNMENT
Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment, transfer, delegation or subcontract in violation of this Section 12 shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under this Agreement without Buyer’s prior written consent.
12. CHOICE OF LAW
This Purchase Order shall be governed by, and construed in accordance with, the laws of the State of Arizona, United States of America. The parties further agree that all actions or proceedings arising in connection with this agreement shall be tried and litigated exclusively in the County of Pinal, State of Arizona.
13. FORCE MAJEURE
Any delay or failure of Seller to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, pandemics or epidemics, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
14. RELATIONSHIP OF PARTIES
The relationship between Buyer and Seller is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15. RESEARCH USE ONLY
Goods sold hereunder are intended for research use only and are not intended to be used for diagnostic or clinical purposes.
16. ENTIRE AGREEMENT
Unless superseded by a specific signed agreement between Buyer and Seller, these Terms and Conditions constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. This agreement is intended solely for the benefit of the parties herein and is not intended to benefit any third person or party.
17. SEVERABILITY
If any term, covenant, condition or provision hereof is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect and shall in no way be affected, impaired or invalidated.
18. WAIVER
The failure of either party to enforce at any time any of the provisions of these Terms and Conditions or to require at any time performance by the other party of any of such provisions, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of these Terms and Conditions or any parts thereof, or the right of either party thereafter to enforce each and every provision.
19. MODIFICATIONS
These Terms and Conditions may be amended, modified, or otherwise changed by Precision Lab Supplies LLC., in its sole and absolute discretion, at any time. Changes to these Terms and Conditions will be published on Seller’s web site at www.cancercontrols.com. Customer acknowledges and agrees that the Terms and Conditions published on Seller’s web site on the date the Order is confirmed by customer or the Goods are shipped, whichever date is earlier, shall govern.
