Terms & Conditions
These terms and conditions of sale ("Agreement") are applicable to any order placed with and accepted by Molecular Toxicology, Inc. (MOLTOX®) herein referred to as ("Seller") and govern the sale of Products ("Product or Products") produced by MOLTOX®. These terms and conditions take precedence over Buyer's supplemental or conflicting terms and conditions to which notice of objections are hereby given. Seller's commencement of delivery shall not be deemed or construed as acceptance of Buyer's supplemental or conflicting terms and conditions. Buyer's acceptance of the Products from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
1. Scope of Agreement:
Seller, upon acceptance of an Order placed by Buyer, will supply the products specified in the Order to Buyer, pursuant to the terms and conditions of this Agreement. All Sales Order confirmations constitute an offer limited to these terms. Modifications to this agreement must be voluntarily agreed to in writing by Seller. Seller reserves the right to review Buyer's orders and/or production requirements before such orders are deemed accepted by Seller.
2. Orders:
All orders placed by Buyer are subject to acceptance by Seller. Seller agrees to use its best efforts to provide Buyer with the Product in a timely manner and in a sufficient supply pursuant to requirements as set forth on the Standard Order Form. However, Seller shall have the express right to refuse/deny and Order, or portion thereof, if said Order is unreasonable, commercially impractical, or unduly burdensome, provided Seller gives Buyer written notice of such refusal/denial within ten (10) days after receipt of the Order. Except as otherwise expressly agreed by Seller in advance or as modified by the parties in writing, this Agreement shall control all aspects of the dealings between Seller and Buyer with respect to the Product. Orders may not be cancelled or rescheduled without Seller's written consent. All orders must include the part number and unit quantities. Seller may designate certain Products as non-cancellable, non-returnable ("NCNR"). Custom and/or specialty products and made to order products are non-returnable. Sales Orders and stipulations therein are considered "agreed to" whereby a Sales Order confirmation has been sent (via email) and no response from Buyer has been received within 48 hours. Buyer must allow 48 hours for processing any international order. Seller reserves the right to discontinue any product at any time without penalty and/or liability.
3. Shipping and Delivery:
(a) All Sales Orders are termed FOB shipping whereas Seller will "Prepay and Add" all shipping charges and insurance associated with the delivery of the Order to the Invoice unless otherwise agreed to by Buyer and Seller in writing. Risk of loss due to damage or destruction shall be borne by Buyer. Buyers who request the shipment to be on their collect freight accounts must present a written notice to Seller upon receipt of order. Collect freight account shipments may be subject to additional fees. Any claims to product damage are the responsibility of the Buyer and any and all Invoices related to the purchase are valid and must be paid by the Buyer. (b) Ship dates stated verbally, on any Sales Order, email or Quote are estimates only and are subject to review and/or change without penalty of the Seller. While every reasonable effort will be made to comply with such requested ship dates stated by Buyer, compliance is not guaranteed and Buyer shall have no right to damages or to cancel the order for failure for any cause to meet delivery date stated by Buyer. (c) If Buyer fails to accept delivery of Products the Seller reserves the right to invoice the Products to the Buyer. Where the Buyer requires delivery of Products by installments, otherwise termed "Blanket Order", "call-off" Order and/or "Standing Order", rescheduling of such delivery requires at minimum 10 business days in writing and so agreed to by Seller in writing. (d) Seller reserves the right to assign and/or change shipping methods, ship dates and packaging scenarios of Products based on information or any other reasonable judgment of Seller that would affect quality and/or delivery of such Products to Buyer.
4. Returns/Replacements/Credits:
(a) Invoices associated with all shipments termed CIF shipping are the responsibility of the Buyer to pay in full. No-charge replacements and/or credits will be issued by the Seller where deemed appropriate by Seller either by freight damage, product functionality or quality. (b) Freight damage must be reported within 7 days of receipt to Seller whereas all packaging and damaged product be set aside for freight company inspection. Any claim denied by the freight company because packaging and/or damaged product was not able to be inspected will be the responsibility of the Buyer to pay additional fees or charges associated with such investigation and/or replacements and/or credits issued. (c) Product functionality and/or quality issues must be made known to the Seller in a reasonable amount of time pursuant to the delivery date of the product, not to exceed the expiry date of such Product. Upon receipt of Buyer's notification that a Product has functionality or quality issue, Seller shall have the right to inspect said non-conforming items. Seller will make an appropriate adjustment in the original sales price of such units or, at Seller's election, replace the non-conforming units. Should Buyer fail to notify Seller of such non-conforming units within a reasonable time after receipt, or if Seller determines that the units do in fact conform to Seller's specifications, Buyer shall not have any right to return, exchange, or get credit for the items in question. Products that are suspected or known to have been stored, used or implemented improperly are not subject to any return, replacement or credit. (d) All products are accompanied by a Quality Control Certificate of acceptance. Any Products insisted to be shipped without the approval of Seller's Quality Control department by the Buyer are considered "on Risk" and are not subject to replacement, return or credit.
5. EXPRESS WARRANTY LIMITATION: SELLER MAKES NO OTHER WARRANTY TO BUYER WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. Indemnity:
Buyer agrees to indemnify Seller and hold Seller harmless from any loss or claim arising out of the negligence of Buyer through its agents, employees or representatives, or arising out of any unauthorized representation or warranty or use of the Product made by Buyer though its agents, employees or representatives.
7. Price, Fees and Terms:
(a) The prices of the Products described on Sales Orders and/or Invoices are final unless previous agreement in writing to the contrary have been established. All prices quoted are exclusive of duties and all taxes including international, federal, state and local sales tax. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale as well as the collection or withholding thereof, including penalties and interest. When applicable, transportation and taxes shall appear as separate items on Seller's invoice. (b) Sellers terms are net 30 whereas any Buyer holding a net 30 days term account with the Seller agrees to pay all invoices within a period of 30 days and is subject to collections if in breach of this agreement to the discretion of the Seller unless otherwise agreed to by Seller in writing. (c) Seller may include packaging costs on the invoice such as box and ice fees where applicable. A handling fee of $25 is added for all hazardous goods materials.
8. Use of Products:
Seller's products are not designed, manufactured, sold or intended for use in any clinical setting, pharmaceutical setting nor are to be used in product release testing. Products manufactured by Seller are designed, intended and explicitly used for research purposes only unless otherwise noted or agreed to by Buyer in writing. Seller will not be responsible for any liability resulting in the unintended use of Products sold to Buyer.
9. Export Control:
Buyer certifies that it will be the recipient of the Products to be delivered by the Seller and understands that the Products are governed by the U.S. Export Administration Regulations ("EAR") and by the U.S. Foreign Assets Control Regulation ("OFAC"). The Buyer understands that its sale or distribution of said Products may constitute exports or re-exports and must be in accordance with the requirements administered by the Bureau of Industry and Security, Department of Treasury and Department of State, U.S. Department of Transportation ("DOT") and the International Air and Transport Association ("IATA"). It is understood that the country of ultimate destination, commodity classification and end user(s) could affect the applicable license requirements and exportability. The Buyer agrees to consult various resources such as those mentioned above and any other appropriate Government resource to ensure that the sales, distribution and packaging of such Products is processed within the accordance to all applicable laws and regulations. The Seller relinquishes all liability upon the transfer of Products to the shipping company and will not be responsible or liable for any Products shipped via third party person or entity.
10. Limitation of Liabilities:
Buyer shall not be entitled to and Seller shall not be liable for loss of profits or revenue, manufacturing expenses, overheads, business interruption costs, loss of data, removal or reinstallation costs, injury to reputation or loss of Buyers and/or contracts or orders, punitive damages, IP (intellectual property) infringement, or any indirect, incidental or consequential damages of any nature. Buyer's recovery from Seller for any claim shall not exceed the purchase price paid for the affected Products irrespective of the nature of the claim whether in contact, tort, warrant or otherwise. Buyer will indemnify, defend and hold Seller harmless from any claims based on (a) Seller's compliance with Buyer's design, formulation, specifications or instructions, (b) modification of any product by anyone other than Seller, or (c) use in combination with other products.
11. Force Majeure:
Unforeseeable production, shipping disturbances, war, acts of terrorism, acts of nature, fire, unforeseeable shortages of labor, utilities or raw materials and supplies, strikes, lockouts, acts of government and any other hindrances unforeseen to cause disruption to production, delivery, acceptance or use of Products beyond Seller's reasonable ability to control shall be relieved from all liability for failure to fulfill its obligations for any accepted Order or for delays in production or delivery.
12. Intellectual Property:
Any materials offered to Buyer such as manuals, Quality statements, Products, catalogues, illustrations, etc., are considered intellectual property of the Seller whereas Buyer agrees to withhold from selling, replicating, profiting or distribution of such materials unless an exclusive distribution contract between Buyer and Seller have been agreed upon. Any and all inventions, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, information involving proprietary data existing and owned by Seller during the term of the Order or made or conceived by employees, consultants, representatives or agents of Seller during the term of this Agreement and previously established by Seller shall be and remain the sole and exclusive property of Seller.
13. Assignment:
Neither this Agreement nor any interest in this Agreement may be assigned by Buyer without the prior express written approval of Seller, which may be withheld by Seller at Seller's absolute discretion.
14. Technical Assistance or Advice:
At Buyers request, Seller may provide technical assistance or advice with relation to use or handling of Products purchased by Buyer. Any requests from Buyer that is not product specific but relate more to interpretation of data, validation, regulatory acceptance, etc., are not within the scope of these terms and conditions and will not be offered to Buyer. Such requests are best met through the use of a consultation service. Seller shall not be held liable for the content or Buyer's use of such technical assistance or advice nor shall any statement made by Seller constitute a representation or warranty, express or implied whether verbally, via email or information provided on www.moltox.com.
15. Termination of Previous Agreement and Modification:
This agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.
16. Restriction:
Buyer shall not make any claims as to benefits, efficacy, or safety of the Product, that have not been expressly approved in advance, in writing, by Seller. Buyer shall not make or extend any warranty to any person, corporation, partnership, limited liability company, or other entity, with respect to the Product without Seller's prior written approval.
17. General:
These terms and conditions shall be governed by the Laws of the State of North Carolina and Article 2 of the Uniform Commercial Code (UCC).