New England Biolabs (Canada) Ltd.
General Terms and Conditions of Sale
1. Acceptance of Terms
1.1 These are the terms and conditions (“Terms”) under which New England Biolabs (Canada) Ltd. (“NEB”, “we”, “us”, or “our”), an affiliate of New England Biolabs, Inc., sells products services, and/or products resulting from services (collectively, “products”) to you, either directly or indirectly through our affiliates, and they will govern all your product orders to and purchases from NEB. Our offer to sell products is expressly conditioned upon your acceptance of these Terms. You will be deemed to have accepted these Terms unless you return the products you received to us unopened and unused in accordance with Section 3 of these Terms no later than ten (10) days after your receipt. Our failure to object to any terms and conditions contained in any purchase order or other document from you will neither be construed as our acceptance of such terms and conditions nor as a waiver of these Terms.
1.2 These Terms, which include all documents incorporated herein by reference, any quotation and related documents issued to you from us or our affiliates, and those specific terms of a purchase order or other document that are either consistent with these Terms or expressly agreed upon by us in writing, constitute the entire contract between us relating to the subject matter hereof (the “Contract”), and supersede all prior agreements and understandings between us, whether written or oral. Any additional or different terms and conditions are hereby rejected and will be void. In the event of a conflict, a quotation and other related documents issued to you from us or our affiliates takes precedence over these Terms, and a written contract covering the same subject matter signed by both of us takes precedence over both. If one or more of these Terms are held invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining Terms will be unimpaired.
2. Orders and Delivery
2.1 You agree that your order is an offer to buy, under these Terms. All orders are subject to our acceptance and availability of the products. Any changes that you may propose to the specifications, quantities, scope, method of shipment, schedule or place of delivery of products must be provided to us in writing and may be accepted by us at our discretion. We reserve the right to make delivery in installments, which will be separately invoiced and paid for when due per invoice. As applicable, on occasion, we may make changes to product specifications or that affect a product’s form, fit, or function. Any new specifications will be made available on our website at www.neb.ca or provided to you upon request or in accordance with any applicable quality agreement.
2.2 All products are sold FCA our facility. Products are delivered and the sale will be completed once we load them onto the commercial carrier at our facility. At this point you become responsible for risk of loss and damage. If any product is lost or damaged while it is being transported, we will try to help you address the problem with the carrier. Title to products will pass to you upon our delivery of the products to the carrier.
3. Inspection and Returns
You can return products that are damaged or defective on delivery, or correct any shortages or delivery errors, if you contact Customer Service within ten (10) days from the day you receive the products. When you contact Customer Service, we will give you instructions on returning any products and on replacements; however, you must return any such products not later than twenty (20) days after you first received them. If you do not contact us within the initial ten (10)-day period, the products will be deemed accepted, but you will not lose any warranty rights. Authorization for all product returns must be approved by Customer Service and a returned material authorization number given to you prior to the return of products. Not all products will be authorized for return, including, without limitation, due to temperature, packing, or other requirements. We may require you to sign and deliver a properly completed certificate of decontamination prior to returning any product. Products authorized for return must arrive at our facilities in a state satisfactory for resale to be eligible for product credit. You are responsible for all shipping and handling charges on returned products unless otherwise specified.
4. Credits and Refunds
For any properly returned products, at our discretion, we may replace the products free of charge or issue a product credit or refund for the product value and shipping charges. No product credit will be available for use if a past due balance is outstanding on the account, and NEB may, in its sole discretion, apply the amount of any refund payable to you to such outstanding past due balance. Any product credit not used within six (6) months of the date of issue will expire.
5. Price, Taxes and Other Charges
If we do not provide you with a written quotation or if the price is not specified in a written contract between us, the price will be the list price that applies on the date we receive your order. Our prices are subject to change from time to time. Our prices do not include any taxes (including VAT or HST), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. You are also responsible for standard delivery and handling charges, if any. We will also add these charges to your invoice.
We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing. We reserve the right to correct any such errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
6. Payment
Invoices shall be paid in Canadian dollars within thirty (30) days from the invoice date. Each order is a separate transaction, and you may not set-off payments from one order against another. If you are late in making payment, without affecting our other rights, we may suspend delivery or cancel the order or Contract, reject your future orders, and charge you a late-payment charge, from the due date until paid, at the rate of one percent (1%) per month or, if less, the maximum amount allowed by law.
7. Limited Warranty
7.1 Unless a different written warranty is included with product literature or associated documents, we warrant to you that the products will conform to the technical specifications for such products as provided in our catalogues and literature accompanying the products until their respective expiration
dates (if stated) or up to their respective number of uses, as the case may be. If we do not specify an expiration date, number of uses, or warranty period for a product, then we warrant to you that the product will conform to its technical specifications for twelve (12) months from the date of your receipt of the product. THE WARRANTY IN THIS SECTION IS EXCLUSIVE, AND WE MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF NON-INFRINGEMENT, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT, WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IF WE MANUFACTURE CUSTOM PRODUCTS FOR YOU BASED ON INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS YOU PROVIDE TO US, WE WILL NOT BE LIABLE FOR THE LACK OF SUFFICIENCY, FITNESS FOR PURPOSE, INFRINGEMENT, OR QUALITY OF THE PRODUCTS TO THE EXTENT ATTRIBUTABLE TO SUCH INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS.
7.2 Our warranty will not be effective if we determine that you have altered or misused the products or have failed to use or store the products in accordance with our instructions, if the defects to the products result from neglect or accident caused by you or any third-party, or if you continue to use the products after discovering the product does not conform to the specifications. Our sole and exclusive liability, and your exclusive remedy with respect to products returned within the warranty period and proved to our satisfaction (applying analytical methods reasonably selected by us) to be defective or nonconforming, will be the replacement of the products free of charge upon your return of the products in accordance with our instructions, although at our discretion we may provide a credit or refund in accordance with Section 4 above. Warranty claims must be made within thirty (30) days after you discover that the product does not conform.
7.3 We do not support or make any warranties about products manufactured by third parties you purchase through one of our sales channels. Such third-party products are subject to the warranties, if any, of their respective manufacturers to the extent they are transferable or otherwise available to our customers. You must look directly to the relevant third-party manufacturer for warranties and to make warranty claims. Limited warranty for products manufactured by Cell Signaling Technology can be found on their website at https://www.cellsignal.com/legal/terms-conditions/product-terms-of-sale.
7.4 Unless otherwise agreed, all technical assistance and information we provide to you regarding the products will be provided gratis, and you assume sole responsibility for results obtained in reliance thereon. We make no warranty regarding such technical assistance or information.
8. Product Use and Restrictions
8.1 Except as otherwise agreed in writing by our authorized representative, all products are for RESEARCH USE ONLY, AND NOT FOR HUMAN OR ANIMAL THERAPEUTIC OR DIAGNOSTIC USE. We do not submit the products for regulatory review by any government body or other organization, and we do not validate them for clinical, therapeutic or diagnostic use, or for safety and effectiveness. You are solely responsible for making sure that the way you use the products complies with applicable laws, regulations and governmental policies and for obtaining all necessary approvals, intellectual property rights, licenses and permissions that you may need related to your use. You represent and warrant to us that you will properly test, use, and, to the extent authorized, market any products purchased from us and any final articles made from them in accordance with the practices of a technically qualified
individual and in strict compliance with all applicable governmental food, drug, device, and cosmetic requirements and other applicable governmental requirements, now and hereinafter enacted. You assume responsibility to assure that the products you purchase from us are approved for use under Canadian laws, including any applicable environmental or hazardous substances laws such as the Canadian Environmental Protection Act, 1999 and the Hazardous Products Act (Canada).
8.2 It is solely your responsibility to make sure the products are suitable for your particular use and to conduct any research necessary to learn the hazards involved for any of your uses of products purchased from us. You also have the duty and obligation to warn your customers, employees and any auxiliary personnel of any risks involved in using or handling the products. You agree to comply with instructions for use of the products furnished by us, if any, and not to misuse the products. If the products purchased from us are to be repackaged, relabeled or used as starting materials or components of other products, you will verify our assay of the products, qualify the products provided by us for such applications, and comply with all governmental requirements relating to labeling or providing other communications to customers. You acknowledge that we provide material Safety Data Sheets (SDSs) for the products, as applicable, and that they are available electronically on our web site at www.neb.ca for catalogue products, or in paper copy by contacting us, and that you are willing and able to access SDSs by these means.
8.3 You may not perform compositional, structural, functional or other analysis of the products, or undertake deconvolution or reverse engineering with respect to the products.
9. Limited Rights
You acknowledge and agree that all intellectual property rights in our and our affiliates’ products and in any of our and our affiliates’ technology, intellectual property and know-how used to make or provide, or useful for the manufacture or use of, the products will at all times remain vested in us and our affiliates and our and their licensors. Unless otherwise expressly agreed in writing by our authorized representative, your purchase of the products only grants you a limited, non-transferable right to use the quantity of the products that you have purchased from us for your internal research purposes only, and in compliance with the applicable intended use statement, limited use statement or limited label license, if any, in our current catalogue, website or on the label or other documentation accompanying the products (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety). You will not cause, induce, or permit others' non-compliance with these limited rights. We do not expressly, by implication, or by estoppel convey any right to resell the products or any of their components. Unless otherwise expressly agreed in writing by our authorized representative, we provide no rights to use the products in commercial applications of any kind, including, without limitation, manufacturing, quality control or commercial services such as reporting the results of your activities for a fee or other form of consideration. It is solely your responsibility to determine whether you may be required to obtain any additional or third party intellectual property rights depending upon the particular application in which you use a product. If you need commercial use rights to the products (including the right to perform fee-for-services), please contact our Global Business Development department at busdev@neb.com.
10. Indemnity
To the extent allowed by applicable law, and except where a claim arises as a result of our gross negligence or willful misconduct or that of our affiliates, you will indemnify, defend, and hold harmless us and our affiliates and our and our affiliates’ directors, officers, agents, employees, and distributors (each an "Indemnified Party") for any claim, loss, damage, expense or other liability (including reasonable attorneys' fees and costs) which may be made against an Indemnified Party as a result of (a) your acts or omissions or your use or modification of a product, (b) our manufacture or sale of a product we make under your instructions, specifications, or other directions, (c) your failure to comply with the Contract, (d) your failure to acquire any applicable additional rights related to your use of the products, or (e) our or our affiliates’ use of materials you provide to us or our affiliates or of third-party materials we or our affiliates acquire at your request.
11. Limitations of Liability
11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATES WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE CONTRACT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH THE PRODUCTS OR THE PROVISION THEREOF, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, OUR AND OUR AFFILIATES’ MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, OR ANY PRODUCT OR THE PROVISION THEREOF, IS LIMITED TO THE AMOUNT YOU PAID TO US FOR THE PRODUCT PURCHASED.
11.2 DELIVERY DATES AND TIMES ARE ESTIMATES ONLY AND WE AND OUR AFFILIATES WILL NOT BE LIABLE (IN CONTRACT, TORT OR OTHERWISE) FOR ANY LOSSES, EXPENSES, CLAIMS OR DAMAGES CAUSED BY A LATE DELIVERY.
12. Export Controls, Anticorruption Compliance
12.1 You acknowledge that products, software and/or technology received from us are subject to Canadian and United States (“U.S.”) laws governing imports, exports and re-exports, as well as export-related laws applicable in jurisdictions outside the U.S. You represent and warrant to us that you will not, directly or indirectly, without obtaining prior authorization from competent government authorities where required by such laws and regulations, sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, and/or technology (including products derived from or based on such technology) received from us to (a) any destination subject to a trade embargo, (b) any entity or person prohibited from receiving the products, software and/or technology subject to a similar sanctioned party restriction, including but not limited to those parties identified on the Consolidated List which can be searched at https://legacy.export.gov/csl-search or the Consolidated Canadian Autonomous Sanctions List which can be searched at https://www.international.gc.ca/world-monde/international_relations-relations_internationales/sanctions/consolidated-consolide.aspx, or (c) any destination for any prohibited end use, including but not limited to activities involving the development, production, use or stockpiling of nuclear, missile, or chemical or biological weapons or precursors.
12.2 You also represent and warrant that you will comply with all applicable laws and regulations relating to bribery and corruption, including but not limited to the Canadian Corruption of Foreign Officials Act, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act. Without limiting the generality of the foregoing, you represent and warrant that you will not pay money or provide anything of value to any government official and/or anyone acting in a commercial context in violation of bribery or corruption laws or regulations applicable to your business activity.
13. Miscellaneous
13.1 We will not be responsible or liable for failing to perform our obligations or be deemed to have defaulted under or beached the Contract, for any failure or delay in fulfilling or performing any of our obligations set out in the Contract, to the extent caused by circumstances beyond our reasonable control. Our exercise of any option or failure to exercise any rights hereunder will not constitute a waiver of our rights to damages for breach of contract and will not constitute a waiver of any subsequent failure, delay, or breach by you. If any provision or part of the Contract is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Contract. Headings are for convenience only and will not be used in the interpretation of these Terms.
13.2 The Contract will be governed by and construed in accordance with the laws of the province of Ontario, Canada without regard to conflicts of law provisions. You will not assign any of your rights and/or obligations under the Contract without our prior written consent. We may assign our rights and/or obligations under the Contract to any person in whole or in part. You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions received from us as a result of discussions, negotiations or other communications between us in relation to the products or the provision thereof. We reserve the right to change these Terms at any time. Any changes made to these Terms will not apply to the Contract between us for any order we receive before the changes are made.
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