1. Scope. These terms and conditions (“terms”) apply to all orders for and purchases of products and services from BioForce Nanosciences, Inc. (“BioForce”). For modifications of these terms to be effective, they must appear in BioForce’s quote or acknowledgement of an order, or in a written agreement signed by an officer of each party. These terms supersede any course of dealing between the parties or usage of trade in the industry. Acceptance of buyer’s order is conditioned upon buyer accepting these terms. Any terms and conditions attached to buyer’s document shall have no effect and are expressly rejected by BioForce. BioForce’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of BioForce’s terms.
2. Price. Prices are exclusive of all taxes, fees, licenses, duties, levies, or bank charges, all of which are buyer’s responsibility. Buyer shall pay applicable taxes unless it provides a proper tax exemption certificate. Quotes are good for thirty (30) days unless otherwise stated in the BioForce quote.
3. Delivery, Title and Risk of Loss. Sales are FOB origin for domestic shipments and CIP destination region port of entry (Incoterms 2000) for international shipments. All costs of shipping, delivery, handling and insurance are the responsibility of buyer. Quoted delivery dates are approximate. BioForce may deliver products in one or more consignment and invoice each consignment separately. BioForce does not accept liability for any loss arising from delay in delivery of products. Risks and costs incurred by BioForce due to buyer’s failure to authorize or accept delivery shall be borne by buyer. Risk of loss and title shall pass to buyer when BioForce has satisfied its obligations under the specified shipping terms.
4. Acceptance. Buyer shall notify BioForce of any visible defects to the product packaging within seven (7) days after receipt of a shipment. Claims for shortages or errors must be made in writing within 30 days after receipt or the claim shall be waived. Buyer shall not return a product without BioForce’s prior written consent. Returned products are subject to restocking and reconditioning charges. Authorized returns shall be shipped freight prepaid to BioForce’s U.S. offices unless otherwise approved by BioForce.
5. Payment. Payment is net thirty (30) days from the date of invoice in United States dollars. A monthly late payment processing fee of 1.5% may be charged on balances over 30 days past the invoice date. For shipments outside the United States, BioForce may require payment to be secured by an irrevocable letter of credit or a bank guarantee acceptable to BioForce. Costs of collection associated with letters of credit shall be for buyer’s account. If BioForce is required to bring legal action to collect delinquent accounts, buyer shall pay the costs of suit and collection, including BioForce’s reasonable attorneys’ fees. BioForce shall retain a security interest in the products until buyer’s final payment clears.
6. Cancellation. BioForce shall have the right to cancel any unfilled order without notice to buyer in the event that buyer becomes insolvent, is adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business. BioForce may cancel or reschedule any order that is delayed by a Force Majeure event.
7. Limited Warranty. Except as specified below, products shall be free from defects in materials and workmanship and shall conform to BioForce’s specifications in effect at the time of shipment or other specifications accepted in writing by BioForce for the earlier of (i) 90 days, (ii) as indicated on product inserts, or (iii) as specified below, in each case from the date of shipment of the product:
PRODUCT
WARRANTY
Nano eNabler system
See separate warranty terms below
TipCleaner
One year from shipping for manufacturing defects except for lamp, which shall be 90 days
SINDEX™
Chips and SPT™ Print Cartridges 30 days from shipping for manufacturing defects
This warranty does not apply to products subjected to misuse, abuse, neglect, accident, alteration, modification, operation outside recommended parameters, power fluctuation or failure, combining incompatible products, or other like circumstances. BioForce shall make the final determination as to whether its products are defective. BioForce’s sole obligation for products failing to comply with this warranty shall be, at its option, to either repair, replace or issue pro rata credit for the nonconforming product where (i) BioForce has received written notice of any nonconformity; (ii) after BioForce’s written authorization, Buyer has returned the nonconforming product to BioForce; and (iii) BioForce has determined that the product is nonconforming and that such nonconformity is not the result of improper installation, repair, misuse or other circumstance voiding the warranty. BioForce may provide new, exchanged or refurbished parts or assemblies when providing warranty services. The warranty period for repaired or replaced products shall be the remainder of the original warranty period. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BIOFORCE DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS. Provided buyer is an authorized distributor of BioForce products, buyer shall pass this, but no other warranty that expands BioForce’s liability, to a third-party purchaser of BioForce products.
8. Limited Liability. BioForce shall not be liable for incidental or consequential damages, including but not limited to, the cost of labor, requalifications, rework charges, delay, lost profits, or loss of goodwill arising out of the sale, installation or use of any BioForce product. If BioForce has any liability for breach of contract, breach of any implied condition, warranty or representation, the aggregate liability of BioForce to buyer shall be limited in respect of any occurrence or series of occurrences to the contractual value of the products or services that are the subject of the contract.
9. Patents. Subject to the limitations herein, BioForce will defend a suit or proceeding brought against buyer based on a claim that a furnished product infringes a U.S. patent right. Buyer must notify BioForce promptly in writing and give BioForce full and complete authority, information and assistance (at BioForce’s expense) for defense of the suit. BioForce will pay damages and costs therein awarded against buyer but shall not be responsible for any compromise made without its consent. In no event shall BioForce’s liability for such damages and costs (including legal costs) exceed the contractual value of the products or services that are the subject of the lawsuit. In providing such defense, or in the event that such product is found to infringe and the use of the product is enjoined, BioForce, in its discretion, shall procure the right to continue using such product, or modify it so that it becomes noninfringing, or remove it and grant Buyer a credit for the depreciated value thereof. BioForce’s indemnity does not extend to claims of infringement arising from BioForce’s compliance with buyer’s design, specifications and/or instructions, or use of any product in combination with other products or in connection with a manufacturing or other process. The foregoing remedy is exclusive and constitutes BioForce’s sole obligation for any claim of intellectual property infringement. BioForce makes no warranty that products sold hereunder will not infringe any intellectual property rights.
10. Confidential Information; Ownership of Intellectual Property. Except as required by law, neither party shall use, divulge or communicate to any third party any information of the other it reasonably knows to be confidential, except to the extent necessary for performance of its obligations hereunder. BioForce’s sale of products does not convey any ownership or license by implication, estoppel or otherwise covering the underlying intellectual property, or combinations of the products with other equipment, data or programs. BioForce retains ownership of all intellectual property rights in products supplied to buyer. Buyer agrees not to reverse engineer the products. Buyer’s purchase of a product does not entitle buyer to incorporate it into patented process of buyer. BioForce retains the right of first refusal to license any inventions (patentable or otherwise), discoveries, developments, improvements, information, data, compounds, formulae, know-how or other results that are conceived, developed, reduced to practice, or generated by buyer or jointly by buyer and BioForce and that relate and/or apply to the processes and methods related to BioForce products. Buyer will take all reasonable and appropriate steps, upon the request and at the expense of BioForce, to assist BioForce to secure, evidence and record its rights in such intellectual property.
11. Force Majeure. BioForce shall not be liable for any damage or penalty for delay or failure to perform when it is due to the elements, act of god, act of the buyer, act of civil or military authority, war, riots, concerted labor action, shortages of materials, or any other causes beyond BioForce’s control. The anticipated delivery date shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision.
12. Export Regulations. Buyer agrees to comply fully with all laws and regulations concerning the purchase and sale of products. In particular, buyer agrees to comply with the Export Administration Regulations of the United States in so far as they apply to the sale of the products. The products are licensed by the United States for delivery to the ultimate destination as shown on the shipment/invoice address and any contrary diversion is prohibited. Buyer agrees that it will not export or transfer product for re-export in violation of any United States laws or regulations, or to any denied or prohibited person, entity, or embargoed country in violation of such laws or regulations.
13. Assignment and Subcontracting. BioForce may assign its rights in whole or part, or subcontract any part of the work or services to be provided as it deems necessary or desirable.
14. Notices. Notice shall be deemed given if sent by prepaid first class mail to the party concerned at its last known address. Notice to BioForce shall be to: BioForce Nanosciences, Inc., 1615 Golden Aspen Drive, Suite 101, Ames, IA 50010, Attn: Legal Dept.
15. Waiver. Failure by BioForce to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right or operate to bar the exercise or enforcement of the right at any time thereafter.
16. Applicable Law. The terms and conditions contained herein shall be governed by and construed under the laws of the State of Iowa, USA, without giving effect to its choice of law provisions and the UN Convention on Contracts for the International Sale of Goods. Venue shall reside in an appropriate Federal or state court in Iowa.
Additional Terms Applicable to the Nano Enabler™ Benchtop Molecular Printing System
The Nano eNabler™ benchtop molecular printing system includes: the Nano eNabler base instrument, controller unit, environmental control system, motorized optical system with video capture, LCD monitor, operating software and user manual. BioForce’s warranty in respect to the Nano eNabler system is one (1) year from the date of installation and is subject to the system being: unpacked and installed by authorized BioForce representatives; operated by personnel trained in its proper operation in accordance with provided instructions; maintained in strict compliance with recommended and scheduled maintenance instructions; and BioForce being notified in a reasonable time of failure of the system to meet performance specifications. Buyer shall notify BioForce of a transfer or relocation of the system and permit BioForce, at buyer’s expense and using BioForce’s standard demand service rates then in effect, to inspect and certify that the system has not been damaged or compromised by the move.
Warranty service shall be performed during BioForce normal working hours. Buyer shall pay for service requested or required outside of these hours at the standard BioForce demand service rates then in effect. Buyer shall provide BioForce with full, free, timely access to the system and records related to service, maintenance and use of the system.
Failure of Buyer to satisfy these conditions, in addition to those listed elsewhere in these terms, shall void the system warranty. This warranty does not extend to items consumed through normal daily use, accessories or supplies.
