- Applicability –
All sales of goods (“Products”) by Advanced BioCatalytics Corporation (the “Seller”) are made subject
to these Terms and Conditions of Sale (“Terms”) and are expressly conditioned upon the buyer’s
(“Buyer”) assent thereto. The information contained in these Terms serve to supplement the
information contained in the Seller’s product literature, catalog and on the Seller’s web site,
www.abiocat.com . The Seller will not be bound by any variations from or additions to these Terms
contained in any purchase order or other document submitted by the Buyer. No variation from these
Terms shall be binding upon the Seller unless agreed to in writing by an authorized representative of
the Seller. - Orders –
Acceptance and Cancellation, Returns – No order for Products (“Order”) placed by a Buyer shall be
binding on Seller unless and until accepted by Seller. Seller reserves the right to reject any Order for
any reason. Once submitted to Seller, an Order may not be changed or cancelled by Buyer unless such
change or cancellation is expressly agreed to in writing by an authorized representative of Seller. Any
such agreement to change or cancel an Order may be conditioned upon Buyer paying a change or
cancellation charge intended to compensate Seller for costs incurred, including, but not limited to,
storage and shipping costs, costs of producing non-standard items, costs incurred in purchasing
materials, change or cancellation costs imposed on Seller by its suppliers, disposal costs incurred in
disposing of Products in accordance with law, and any other cost resulting from a change or
cancellation of an Order placed by Buyer. If Seller is unable for any reason to fill Buyer’s entire Order
for Products, Seller may allocate its supply among any or all buyers on such basis as Seller deems
convenient and practical, without liability for any failure of performance which may result from such
determination. Upon Buyer’s receipt of Products, Buyer shall immediately inspect the same and shall
notify Seller in writing within seven (7) days of delivery of any claims for shortages, defects or
damages. If Buyer shall fail to so notify Seller within said 7-day period, such goods shall conclusively be
deemed to conform to their respective specifications and to have been irrevocably accepted by Buyer.
Seller shall not be liable to Buyer for any losses or damages resulting from a late delivery or from
Seller’s failure to perform due to any cause beyond Seller’s reasonable control. Conforming Products
may not be returned for credit except with Seller’s prior agreement, and then only in strict compliance
with Seller’s instructions. Any returned items may be subject to a restocking fee to be determined by
Seller. Under no circumstances will Seller accept for return any customer special order products or any
products that are in a non-saleable condition. Blanket (standing) Orders may be accepted by Seller on
behalf of Buyer under which Products will be shipped, from time to time, pursuant to an agreed upon
schedule. Once a Blanket Order has been accepted, however, Buyer will not be permitted to cancel or
change such Blanket Order without Seller’s prior written agreement. All Blanket Orders will be invoiced
according to the shipping schedule in place at the time of the Blanket Order. Seller shall have the
further right to cease shipping Products under any such Blanket Order and to require payment in
advance at any time that Seller, in its sole discretion, determines that there is any doubt regarding the
ability to collect an invoice. - Shipment, Handling and Delivery –
All sales are made FCA Seller’s shipping point (Incoterms 2000). Shipping and handling charges will be
added to the quoted price for the Products. Seller will bill actual shipping charges plus appropriate
handling, insurance, and hazardous materials surcharges (where applicable). Delivery of the Products
to the carrier at Seller’s shipping point shall constitute Seller’s sole shipping obligation and Buyer shall
thereafter bear all risks of loss or damage in transit. Unless Buyer specifies mode of shipment, Seller
will determine the method of shipment and choice of carrier. - Pricing, Terms of Payment –
All prices are shown in USD and are subject to change without notice. In addition to the quoted price,
Buyer shall also be responsible to pay all sales or use taxes, VAT, excise taxes, duties, customs, import
or export fees and any other taxes, fees or charges of any nature applicable to the Buyer’s purchase of
Products. The terms of all invoices are net 30 days from the invoice date. Past due balances are
subject to 1.5% service charge per month (18% per year) after 30 days. If for any reason Seller
determines that it has concerns about the financial condition of Buyer, the Buyer’s payment history or
any other condition that in the Seller’s opinion is grounds for refusing to sell to Buyer on credit, Seller
may, without notice to Buyer cancel an Order, change the payment terms or insist upon pre-payment
of any Order prior to shipment, or may delay the delivery of the Products until Buyer makes
accommodations acceptable to the Seller. In the event Buyer defaults in the payment of the purchase
price of any Order, Buyer agrees that it will also be responsible to pay all costs, including attorney’s
fees and other expenses of collection resulting from any such default by Buyer.
- Uses, Warranties, Liabilities And Safety –
The Products are intended for their stated purposes only, and unless otherwise stated on Product
labels, in the Seller’s catalog or in other literature furnished to the Buyer by Seller, are not to be used
for any other purposes. Buyer acknowledges that the Products have not been tested by the Seller for
safety or efficacy in any particular application unless otherwise stated in Seller’s written materials
furnished to Buyer.
a. Seller’s Warranty –
Seller warrants that the Products, at the time of delivery to Buyer, shall conform to the specifications
for such Products as are set forth in Seller’s technical data sheets, SDS, website, or any other written
material furnished to Buyer by Seller. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER
EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS CONCERNING THE PRODUCTS (WHETHER
IMPLIED BY STATUTE OR OTHERWISE) AND SPECIFICALLY EXCLUDES SUCH WARRANTIES AND
REPRESENTATIONS TO THE FULLEST EXTENT PERMITTED BY LAW. SELLER SPECIFICALLY MAKES NO
WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER SHALL NOT BE
RESPONSIBLE FOR ANY LOSS OR DAMAGE ARISING FROM THE FAILURE OF ANY PRODUCT TO BE SUITABLE
FOR ANY PURPOSE WHATSOEVER.
b. Limitation of Damages –
Notwithstanding anything else herein contained, in no event shall the aggregate liabilities of Seller to
Buyer arising out of or relating to any transaction between them exceed the purchase price paid by
Buyer to Seller for the Products at issue. SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL,
CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE
PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING,
WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF
REVENUE OR PROFITS, FAILURE TO REALIZE ANTICIPATED SAVINGS, LOSS OF BUYER PROPERTY OR ANY
LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS
OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH
PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE.
c. Buyer’s Remedy –
Seller’s sole and exclusive liability to Buyer and Buyer’s exclusive remedy with respect to Products
proved to Seller’s satisfaction to be defective or nonconforming shall be limited to repairing or
replacement of such Products without charge or refund of the purchase price, upon the return of such
Products, at Buyer’s expense, in accordance with Seller’s instructions. All claims for breach of warranty
must be presented to Seller in writing within sixty (60) days after delivery to Buyer, regardless of their
nature. Failure of Buyer to give such notice shall be deemed to be a waiver by Buyer of all claims with
respect to the subject Products.
d. Exclusion of Seller’s Warranty –
Seller’s warranty made in connection with a sale of Products shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the Products in any manner, has failed to use the Products in accordance with industry standards and practices, or has failed to use the Products in accordance with instructions, if any, furnished by Seller. In no event will Seller be liable for Products damaged in shipment or in any other manner without the fault of Seller, improper care or storage of the Products, or for any expenses incurred by Buyer in testing or attempting to correct any nonconformance of the Products.
e. Buyer’s Representations and Indemnity – The Buyer represents and warrants to the Seller that it shall use the Products in accordance with applicable law, rule, regulation and not in violation of any patent or other proprietary rights of any third party. The Buyer expressly represents and warrants that Buyer will properly test, use, manufacture and market any Products purchased from Seller or materials produced with Products purchased by Seller in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with law. The Buyer agrees to indemnify and hold harmless the Seller, its employees, agents, successors, officers and assigns for and against any and all suits, claims, demands, liabilities, losses, damages and/or expenses, including costs and fees of legal counsel and all other costs of defending any action, that the Seller may incur as a result of any act or failure to act by the Buyer, its officers, agents or employees, successors or assignees, its customers or all other third parties, whether direct or indirect, in connection with the possession or use of any Product sold by Seller or by reason of Buyer’s breach of any of its agreements contained herein. Buyer shall notify Seller in writing within fifteen (15) days of Buyer’s receipt of knowledge of any accident, or incident involving Seller’s Products which results in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident.
f. Safety – All of the Products offered by Seller are chemicals. As such, they should be used or handled only by or under the direct supervisions of technically qualified individuals. Seller, therefore, makes no guarantee of results and assumes no liability for injuries, damages or penalties resulting from their use, since the conditions of handling and use are beyond Seller’s control. Any suggestions or recommendations for use of any Product are made without warranty and are not to be taken as a license to operate under or to infringe any patent. If any license, permit or approval of any person, entity or governmental or other regulatory authority shall be required for the acquisition, transport or use of the Products by the Buyer the Buyer shall be solely responsible to obtain the same at its own expense. All Products should be handled only by properly trained persons who are familiar with procedures and the potential hazards in handling chemicals. The Buyer assumes all responsibility to learn and understand the risks associated with any of the Products and for instructing its employees, agents, customers and any other persons who might reasonably be expected to come into contact with the Products, in techniques for safe handling and use of the Products and of any potential risks to person and property in any way connected with the Products. The Buyer also assumes the responsibility for the safe disposal of all Products in accordance with all applicable laws.
- Governing Law –
Any dispute concerning these Terms, including as to the legality, interpretation or application shall be
governed by the laws of the State of California, without regard to its principles of conflicts of laws. All
Buyers agree that any disputes that concern the Products and/or these Terms shall be brought in the
state or federal courts of Orange County, California. - Miscellaneous –
(i) Seller’s failure to strictly enforce any term or condition contained in Seller’s Terms shall not
constitute a waiver of Seller’s right to strictly enforce such terms or conditions at any time in the
future. If any provision of these Terms shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The
paragraph headings contained herein are for convenience only and are not to be considered in
interpreting these Terms. These Terms are intended to be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and
assigns.
January 2021
