Please Read Carefully. This Document Contains Very Important Information About Your Rights and Obligations, as well as Limitations and Exclusions that may Apply to You.
This Agreement contains the terms and conditions that apply to your purchase from Phenova, Inc. ("Phenova") that will be provided to you ("Buyer") on orders for products and/or services and support (“Products”) sold in the United States. By accepting delivery of the Products described on any invoice from Phenova, you (“Customer” or “Buyer”) agree to be bound by and accept these terms and conditions. THESE TERMS AND CONDITIONS APPLY (i) UNLESS THE CUSTOMER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH PHENOVA, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (ii) UNLESS OTHER PHENOVA STANDARD TERMS APPLY TO THE TRANSACTION. These terms and conditions are subject to change without prior written notice at any time, in Phenova 's sole discretion.
ACCEPTANCE
Performance by Phenova is expressly made conditional on Buyer’s assent to these terms and conditions. Any additional or different terms in any Buyer request for quotation, acknowledgment, commencement, or purchase order shall constitute a counteroffer and such counter offer shall not be accepted by Phenova without written approval by Phenova. Buyer agrees and represents that it is buying for its own end use only, and not for resale. Buyer warrants that they have sufficient knowledge, training, facilities and skills to safely use and store products provided under this agreement.
ACCEPTANCE TESTING
Buyer may test any product provided by Phenova for conformation to product specifications, if applicable. Product specifications will be provided by Phenova with some Products or upon written request for other products, if applicable. Buyer has thirty (30) days to conduct acceptance testing and notify Phenova of any non-conformities. Failure of the Buyer to conduct acceptance testing and notify Phenova will be deemed acceptance of the product by the Buyer. In the event of a non-conformity, Phenova will refund and / or credit the non-conforming item, at Phenova’s discretion.
QUALITY
All purchases are subject to Phenova approval not withstanding prior payments and, if not in accordance with the specifications, may, at Phenova's sole option, be refunded or credited to the Buyer. Phenova reserves the right to change product specifications, quantities, designs or prices without notice and without liability for such changes.
PRICE
The price(s) set forth in any Phenova Order Acknowledgement are firm and shall not be changed without the prior written consent of Phenova. If no price is specified in this Purchase Order, the goods shall be invoiced at the current list price.
PAYMENT
Payment will be due net thirty (30) days from receipt on approved credit. Where other payment terms are specified on the Order Acknowledgement, payment shall be made in accordance with those terms and conditions. A 1.5% per month service charge is added to delinquent accounts. In the event that it becomes necessary for Phenova to incur collection costs or institute a suit to collect any amount due and payable, the customer (Buyer) agrees to pay such additional collection costs, charges, and expenses, including attorney's fees if the account is placed in the hands of an attorney or an agency for collection.
SHIPMENT
Shipment of the goods shall be made in accordance with customary shipping practices for such goods. Items are shipped by a fast/standard method unless otherwise specified. Unless otherwise stated in the Order Acknowledgement, Buyer shall absorb and pre-pay all shipping and insurance charges.
WARRANTY
Phenova warrants that Phenova holds clear title to all products transferred to Buyer under this agreement and is under no legal restraint which would prohibit transfer of possession or title to Buyer. Phenova products are warranted to meet the stated performance and quality and to be free of defects in material and workmanship. They are not warranted, nor does Phenova assume liability, if misused. NO OTHER WARRANTY OR REPRESENATION IS IMPLIED OR EXPRESSED BY PHENOVA FOR ITS PRODUCTS WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER. PHENOVA SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COMPENSATORY DAMAGES ARISING FROM USE OF, OR IN CONJUNCTION WITH, ITS PRODUCTS. The maximum liability that can be assumed by Phenova for breach of warranty shall be the invoice price of the product.
The products offered are for laboratory use only. They are not intended for medicinal or food use. Phenova assumes no responsibility if these products are used for medicinal or food purposes, or are misused in any way. Unless specified, Phenova products are not intended for clinical use.
The information published by Phenova is, to the best of its knowledge, correct and accurate but is not guaranteed to be so. The sale of any product by Phenova does not waive any patent restrictions connected with those products.
Phenova will replace or refund purchases of Products (at our discretion), at no cost if a Product fails to perform satisfactorily. Approval is subject to the following exclusions:
- All Products must be tested upon receipt and all deficiencies must be reported to Phenova no later than 30 days after the date of receipt of the Product.
- Maximum warranty period is limited to 90 days unless previously agreed upon. However, products may not be refunded or credited after 45 days without prior authorization.
- Physical damage to the Product due to misuse, abuse, mishap or improper storage.
COMPLIANCE
Buyer agrees to indemnify Phenova and its customers and to hold Phenova and its customers harmless against all liability and expenses, including counsel fees, if Buyer fails to comply with the applicable laws, regulations and ordinances of the States and of the United States, Phenova may, in addition, cancel this Purchase Order in whole or in part, without further liability to Seller for failure to comply with this provision.
FORCE MAJEURE
Neither party shall be liable to the other for failure to perform or deliver when and as specified if such failure to perform or deliver is caused by war, fire, flood, strike, labor dispute, accident, epidemic, riot, act of God, act of governmental authority, or other contingencies beyond the control of the non-performing party, and which interferes with the party’s ability to perform its obligations hereunder. Any deliveries suspended under this paragraph may be canceled without liability.
NON-EXCLUSIVITY
The parties understand and agree that neither these Terms and Conditions nor any Phenova Order Acknowledgement shall create rights or obligations of exclusivity inuring to the benefit of Buyer. Nothing in these Terms and Conditions or in any Phenova Order Acknowledgement shall limit the rights of Phenova to, at all times, provide goods and services to other buyers.
INDEPENDENT CONTRACTOR
Buyer is an independent contractor and is not an employee, agent, officer, joint venturer or partner of Phenova. Buyer is not authorized to assume or create any obligations or responsibilities, express or implied, on behalf of or in the name of Phenova. It is understood that the employees, methods, facilities and equipment of Buyer shall at all times be under its exclusive direction and control.
GOVERNING LAW
These Terms and Conditions and any contract by any Purchase Order or Order placed hereunder shall be governed by the laws of the State of California without regard to it’s choice of law rules. Jurisdiction to resolve any dispute regarding these Terms and Conditions and/or Purchase Order is held by the state courts of the State of California located in the County of Los Angeles. Should the matter require federal jurisdiction, then jurisdiction shall be held by the federal courts located in the Central District of California.
SEVERABILITY
If any provision or any portion of this Purchase Order is determined to be invalid or unenforceable, the remaining provisions of this Purchase Order shall not be affected thereby, and shall be binding upon Phenova and Buyer, and shall be enforceable as though the invalid or unenforceable provision, or any part thereof, were not contained in this Order Acknowledgement.
CONFIDENTIALITY
During the course of this agreement, Phenova may disclose to Buyer or Buyer may become aware of information that Phenova deems proprietary and confidential. Buyer will maintain in confidence all Phenova information disclosed by Phenova to it or otherwise acquired by Buyer, its employees, agents or contractors, whether disclosed by Phenova or otherwise acquired by Buyer prior to, on or after the effective date of this Agreement. During the term of this Agreement and for a period of five (5) years after its termination or expiration, Buyer will not, unless expressly authorized in writing by Phenova and signed by an authorized representative of Phenova: (i) disclose Confidential Information in any matter whatsoever, in whole or in part, to any third party, or (ii) use Confidential Information for any purpose other than the purposes of this Agreement. Buyer will return to Phenova or destroy all copies of Confidential Information and any documents created by Buyer that incorporate Confidential Information to Phenova upon Phenova’s request except that a single copy may be retained in Buyer’s confidential files to monitor compliance with this Agreement.
Buyer will not use Phenova’s name in any publicity or advertising without Phenova’s prior written approval.
The Buyer’s obligation of non-disclosure and non-use will not apply to any information or data disclosed to it by Phenova which: (i) is or becomes known to the public without fault of the Buyer; (ii) was known to Buyer or to the public prior to the disclosure of the information by Phenova to Buyer; (iii) is rightfully obtained by Buyer from a third party that has no obligation to Phenova prior to the disclosure of the information by Phenova to Buyer; or (iv) was developed by Buyer without the benefit of any Confidential Information. Neither Phenova nor Buyer will publicly disclose any information about this Agreement, including its existence, without the prior written consent of the other. Both Phenova and Buyer acknowledge that this agreement is confidential.
AUDIT
During the performance of this Order Acknowledgement and for three (3) years thereafter, Buyer will maintain books, records and other documents relevant to any work done or goods provided under this Order Acknowledgement. Phenova will have access to and may copy such documents for the purpose of verifying Buyer’s performance and amounts paid to Phenova.
RECALL
Recall Notifications, if any, will be mailed to the “Ship To” address on the Order Acknowledgement.
HEADINGS
The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefore.
ADDITIONAL TERMS
This Order Acknowledgment may include additional terms as Phenova may make a part hereof by attachment or incorporation by reference when specified on the face hereof.
EXCUSE OF PERFORMANCE
The obligation of Phenova to provide products and services pursuant to purchase order(s) may be suspended in the event of : (i) act of God, war, riot, fire, explosion, accident or flood; (ii) lack of adequate fuel, power, raw material, labor, containers, transportation or facilities; (iii) compliance with governmental requests, laws, regulations, orders, or other required licenses or approvals; (iv) breakage or failure of machinery or apparatus; (v) national defense requirements or any other event beyond the reasonable control of Phenova; (vi) labor trouble, strike or lockout, provided that Phenova shall not be required to settle a labor dispute against its own best interest; (vii) any such event that prevents the delivery, transportation, or acceptance of the products or service.
CURE PROVISION
Except with respect to non-payment for products or services rendered by Phenova, if either party commits a material breach concerning which the other party has given written notice to the party who allegedly committed the breached these terms and conditions shall none- the-less remain in effect of a period of sixty (60) days for the breaching party to cure the breach. If the breach is so cured, this Agreement shall remain in effect. In the event Buyer fails to pay any payment when due, Phenova shall notify Buyer orally or in writing of the non-payment (“Notice of Non-Payment). In the event Buyer fails to pay all sums pursuant to the Notice of Non-Payment within ten (10) days of the date of Phenova having given the Notice of Non-Payment, Phenova shall be entitled, at its sole election, to immediately terminate all services pursuant to these terms.
WAIVER
Any waiver by the Phenova of any provision or condition of this Agreement shall not be construed or deemed to be a waiver of any other provisions or conditions of this Agreement, nor a waiver of a subsequent breach of the same provision or condition unless such a waiver be expressed in writing signed by an authorized representative of Phenova.
ENTIRE AGREEMENT
These Terms and Conditions and any attached Exhibits constitute the entire agreement between Phenova and Buyer regarding the above listed subject matter and supersede all prior understandings, agreements and documentation relating to the Order Acknowledgement. All previous representations or agreements are superseded and annulled. No modification of this Agreement shall be binding on Phenova unless in writing and signed by an authorized representative of Phenova. In the event these Terms and Conditions are attached or incorporated into a previously authorized contract, that contract will be referenced on the face of this Order Acknowledgement. These Terms and Conditions will be in full force and effect to the extent they are not inconsistent with any previously authorized contract.
ATTORNEYS' FEES
In the event either party hereto is required to utilize the services of an attorney to enforce or construe any provision of this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees. As used herein, the phrase “prevailing party” includes, but is not limited to a party against whom an action is voluntarily dismissed prior to trial.
ASSIGNMENT
Buyer shall not assign, in whole or in part, to any person, firm, corporation or governmental agency, its rights, interests or obligations under any Phenova Order Acknowledgement without prior written approval from Phenova.
INDEMNIFICATION
Buyer and / or contractor will indemnify, defend and hold harmless Phenova and its customers from and against all liabilities, losses and expenses, including counsel fees and disbursements, arising from the breach of any of these Terms and Conditions, or for personal injury or property damage relating directly or indirectly to the performance of any goods or service provided.
NOTICE
Any notice to be given under this agreement required to be in writing shall be addressed and deposited with the United States Postal Service, postage prepaid and by facsimile transmission as follows:
To Phenova:
Phenova, Inc.
Accounts Department
6390 Joyce Drive STE 100
Golden, CO 80403
Fax: 303-940-0043
To Buyer:
To the address listed on the Order Acknowledgement.
Should either party’s address change, written notification must be sent certified mail return receipt ten (10) days in advance of when the change of address is to be in effect for purposes of this Agreement.