Terms and Conditions
1. General All- Orders are accepted and executed on the understanding that Purchaser is bound by the following Standard Terms and Conditions of Sale. Any deviations from these StandardTerms and Conditions of Sale shall only be binding upon the Seller if the Seller has expressly agreed to said terms in writing.
2. Status of Quotations- The Seller reserves the right to refuse Purchaser’s acceptance of a quotation, unless the quotation is stated to be open for a specific period, and is not withdrawn in such period. All orders for non-standard goods or package quantities not included in current Seller catalogues, are considered special orders, and will be addressed at the Seller’s discretion.
3. Pricing and Discounting- The published prices of the Seller’s goods are those ruling on the date of publication and are subject to change without notice. All pricing is stated in U.S. Dollars. All published prices are for immediate delivery, but if such prices should be increased by Seller before delivery of the goods to a carrier for shipment to Purchaser, then these Standard Terms and Conditions of Sale shall be construed as if the increased prices were originally inserted herein, and Purchaser shall be billed on the basis of such increased prices.
4. Taxes- The published prices do not include any sales, use or like taxes that may now or hereafter be imposed by federal, state, or local governments. Any and all of the foregoing taxes shall be borne by Purchaser.
5.Terms of Payment- Unless otherwise stated by the Seller, all goods shall be paid for in cash within 30 days following the date of the invoice. Seller’s pricing is net, and will not be subject to any terms of settlement. Purchaser may not claim any set-off against Seller. In the event of a delay in payment, Seller shall be entitled to claim, without any notice of default being required and without prejudice to any further rights it may have, interest at a rate of one and a half percent (1 1/2%) per month, or at the maximum rate permitted by law, whichever is the higher. In the event that any payment in respect of goods supplied becomes overdue, Seller may immediately terminate Purchaser’s power of sale, and, where permitted by law, may without prior notice to Purchaser, enter upon the premises of Purchaser to repossess unpaid goods. Purchaser shall reimburse Seller for all expenses and costs (including attorney’s fees) incurred in collection of any past due amount and/or repossession of goods.
6. New Accounts- Where a credit account is desired, a bank and trade references may be required. Seller reserves the right not to grant credit to any Purchaser for any reason.
7. Delivery; Risk of Loss; Security Interest- The Purchaser shall be obliged to cooperate in the delivery of the goods and to take receipt of same. Partial deliveries shall be accepted by Purchaser and paid for pursuant to Seller’s StandardTerms and Condi- tions of Sale. Seller may keep any goods refused or not accepted by Purchaser at the latter’s disposal for account and at the risk of Purchaser. Title and risk of loss or damage to the goods shall pass to Purchaser upon delivery of the goods to the carrier. Seller reserves a purchase money security interest in the goods until payment in full has been received by Seller. Purchaser agrees to such reservation and to the filing of appropriate documents pursuant to applicable law and will, if requested by Seller in writing, execute and deliver to Seller such documents for filing.
8. Damage or Loss in Transit- In the event of short delivery, loss or damage in transit, Seller must be notified within two days of receipt of goods. In the event of non-delivery, Seller must be advised within ten days of the date of invoice. Seller will not be responsible for goods lost or damaged in transit unless the above conditions are complied with.
9. Default- Seller shall have the right to discontinue delivery, and also at its discretion, terminate any agreement with respect to any undelivered goods, if for any reason Seller has doubts as to Purchaser’s ability or intent to pay, or if Purchaser defaults in payment, as stated under Part 5 above, or in respect to any other obligations to Seller.
10. Product Use; Warranty; Limitation of Liability- All goods are sold for research laboratory use, for operation by properly trained and authorized personnel. Seller does not assume liability for damages arising from the use of the goods in any circumstances and Purchaser on behalf of itself and any customer to whom it sells, leases or delivers Seller’s products, hereby expressly disclaims, waives and relinquishes all claims for damages of every kind against Seller under any theory in law or equity . Seller warrants the goods against defects in materials or workmanship for a period of 90 days from the date of delivery of the goods. During this period, Seller will (at its discretion), repair, replace, or issue credit for, goods found to be defective, provided that written notice of any such defective goods given by Purchaser to Seller within the above 90 day period.
THE WARRANTY SET FORTH ABOVE IS PURCHASER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER AND PURCHASER HEREBY WAIVES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER, AND ALL RIGHTS, CLAIMS AND REMEDIES OF PURCHASER AGAINST SELLER, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO ANY REAL OR ALLEGED BREACH OF ANY CONTRACT OF SALE, OR THE NON-CONFORMANCE OR DEFECT IN THE GOODS DELIVERED, INCLUDING BUT NOT LIMITED TO (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) ANY IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, (C) ANY OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SELLER, ACTUAL OR IMPUTED AND (D) ANY OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES FOR ANY OTHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR RELATED LOSSES, COSTS, FEES, OR EXPENSES.
Purchaser waives, releases and relinquishes all rights to file any civil action against Seller or related thereto arising from any sale of goods. Purchaser’s sole and exclusive forum for any alleged breach, failure to per- form or alleged negligence or wrongful act of Seller is final, binding, expedited commercial arbitration under the Rules of the American Arbitration Association, as expressly adopted herein. Purchaser also hereby expressly and knowingly waives its right to file or to pursue any civil lawsuit, and all rights and privileges attendant thereto for any claims arising hereunder. No claim for arbitration shall be filed more than one (1) year after the agreed date for delivery, or the actual delivery, whichever first occurs, of the goods of which Purchaser complains.All arbitration proceedings shall be held in Morgantown,WestVirginia at a place designated by the arbitrator, who shall be selected by the American Arbitration Association to hear the dispute and to render a final, binding decision thereon.To be qualified to serve as arbitrator, any person must have expertise related to the sale of goods generally and to commercial transactions like those contemplated by this Agreement. If the Purchaser desires to seek arbitration, it shall provide written notice of its alleged claim and intent to seek arbitration to Seller within thirty(30) days of Purchaser’s knowledge of the existence of the alleged claim and the failure of Seller to acknowledge and agree to the resolution of the alleged claim or Seller’s rejection thereof.The prevailing party in any arbitration shall be entitled to recover the costs of the arbitration hearing and arbitrator’s fee, but not the recovery of attorneys fee, costs, or expenses.The final, binding decision of the arbitrator may be filed in a court of competent jurisdiction so that it may be enforced. No appeal shall lie therefrom.
11. Return of Goods Seller- does not accept the return of goods for credit unless it is a justified warranty claim. All returns must be authorized in advance. Unauthorized returns will be refused. Under no circumstances may goods supplied against a firm order be returned without Purchaser having first applied for and obtaining both written consent and a Returned Goods Authorization number from the Seller. Seller reserves the right to refuse the return of any product that has been used with infectious, microbiological, or radioactive substances, or other materials that may be deemed hazardous to the Seller’s employ- ees. Goods authorized for return must be received by the Seller within thirty (30) days of the Seller’s written consent.
12. Product Descriptions- All descriptive and forwarding specifications, drawings, and particular weights and dimensions issued by the Seller are approximate only, and are intended only to present a general idea of the goods to which they refer, and shall not form part of a contract.
13. Trademarks- NoTrademarks of Seller’s goods shall be undertaken by Purchaser,or any person on Purchaser’s behalf,without Seller’s prior written consent,nor will Purchaser alter,obliterate,add to,or otherwise interfere with the said Trademarks. The following are Trademarks of Seller,: Protea is a registered Trademark of Protea Biosciences, Inc. iPAGE, SDSaway, Facet, Meridian, SuperBlue, Accumix, ProteaBeads, ProteaGels, ProteaTips, ProteaPlates, SeaClear, Meridian, are Trademarks of Protea Biosci- ences, Inc.
The following areTrademarks of other companies: Coomasie is a registered trademark of BASF AG. 4800 BIOiTRAQ is a trademark of ABI, LTQ is a trademark of ThermoFisher, ZIC is a registered trademark of Sequant AB. Seakem, Metaphor, SeaPlaque, NuSieve are registered trademarks of Cambrex/Lonza, ZipTip is a registered trademark Millicore Corp.
14. Infringement- No representation is made that the goods or their use or sale do not infringe any patents, trademarks or trade names or other industrial property rights of third parties. Purchaser agrees to release Seller from and in respect to any and all claims for any such infringement.
15. Force Majeure- If the performance by Seller of any part of these Standard Terms and Conditions of Sale is prevented,hindered,delayed or otherwise made impracticable by reason of war or the effects of war,blockade,revolution,insur- rection, civil commotion, riot, mobilization, strike, labor trouble, lockout, act of God, plague or other epidemic, fire, flood, obstruction of navigation by ice or other obstruction at any port, acts of the public enemy, any labor, material, transportation or utility shortage or curtailment, governmental order, decree or regulation, labor trouble in Seller’s plant or in the plants of its suppliers or other independent contractors, or to any other similar or dis- similar cause or causes beyond its control, Seller shall be excused from such performance during the continuance of any such contingency and for so long as such contingency shall continue to prevent, hinder or delay such performance. Impossibility of performance by reason of any governmental regulation or the occurrence of an unanticipated contingency, which cannot be overcome by due diligence, shall completely excuse such performance.
16. Amendment; Waiver- These Standard Terms and Conditions of Sale may not be amended, modified, supplemented, cancelled or discharged, except if specifically agreed to in writing by Seller. No waiver of any breach of any provision of these Standard Terms and Conditions of Sale shall be held to be a waiver of any other provision or subsequent breach of the same provision, and the failure of Seller to enforce at any time any provision hereof shall not be deemed to be a waiver of any right of Seller to subsequently enforce such provision or any other provision hereof. No extension of time for performance of any obligations or other acts hereunder shall be deemed to be an extension of time for performance of any other obligations or any other acts.
17. Governing Law- These Standard Terms and Conditions of Sale shall be construed, interpreted and enforced in accordance with and governed for all purposes by the laws and public policy of the State of West Virginia applicable to contracts executed and to be wholly performed in such State, without giving effect to conflicts of laws principles, it being agreed that the provisions herein bear a reasonable relationship to such laws.
18. Entire Agreement- These Standard Terms and Conditions of Sale represents the entire understanding of the parties with respect to its subject matter and supersedes any prior agreements and understandings between them with respect to i subject matter. Any representations, promises, warranties or statements by any agent or representative of Seller which differ from these Terms and Conditions of Sale shall be given no force or effect.
19. Headings- The headings contained in these Standard Terms and Conditions of Sale are for convenience of reference only and shall not be deemed to constitute part hereof or be referred to in the construction or interpretation of any terms.