Terms and Conditions
Terms and Conditions
1. General Provisions
These Terms and Conditions of Sale ("Terms") will govern all purchases of Products and Instrument Services as defined below from SCIENTIFIX PTY LTD. ("SCIENTIFIX") by you, the person, company, or legal entity ("Customer"). SCIENTIFIX's offer to sell Products and Instrument Services to Customer is conditioned upon Customer's acceptance of these Terms.
These Terms, SCIENTIFIX's quotation, any Service Plan and any Customer Specifications as defined below constitute the entire agreement between SCIENTIFIX and Customer regarding the sale of Products and Instrument Services ("Agreement"). The Agreement is created when SCIENTIFIX accepts Customer's order, either by sending Customer a written confirmation or initiating an action to provide the Products or Instrument Services. All prior agreements, understandings or representations related to such order, whether oral or in writing, including Customer's terms and conditions in any purchase order, are hereby rejected by SCIENTIFIX. In the event of a conflict between any terms and conditions contained in any purchase order, confirmation or other writing for the purchase of Products and Instrument Services and these Terms, these Terms will prevail and govern. If one or more of these Terms are held invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability will not affect the remaining Terms.
"Product(s)" mean reagents, consumables, instruments, including the software products and parts contained therein, Custom Products and any other goods, parts or products purchased under these Terms. "Custom Product(s)" mean a catalog Product modified specifically per Customer's instructions, specifications, or statement of work mutually agreed to by the parties in writing ("Customer Specifications") such as custom packaging, quantity, reformulation or other customization of an existing catalog Product. "Instrument Service(s)" mean any of the following: (1) the initial installation and training included with the purchase of an instrument ("Initial Services"); (2) services provided under warranty that are included with the purchase of the instrument; (3) services offered under a service plan, including preventive maintenance services ("Service Plan"); or (4) any other services such as additional training, instrument relocation, other maintenance and repair services, technical and software support services, and any other instrument related services.
4.1 Order Placement. Customer may place an order for Products and Instrument Services by contacting SCIENTIFIX's Customer Service Department at 1800-007-900 or by visiting SCIENTIFIX's website at www.scientifix.com.au. Upon placing an order, SCIENTIFIX's Customer Service Department will confirm the price, shipping method and charges and delivery schedule for Products and date and time for the performance of Instrument Services. Upon receipt of the order confirmation, Customer shall verify the information and immediately notify SCIENTIFIX's Customer Service Department of any inaccuracies.
4.2 Order Changes and Cancellations. Customer may cancel orders for regularly stocked Products and Instrument Services before the order is processed. Orders for Custom Products may not be canceled or changed. SCIENTIFIX may decline a Custom Product order or decide not to supply a Custom Product any time after acceptance of the order without incurring any liability for breach of this Agreement if SCIENTIFIX determines the manufacture or supply of the Custom Product is impractical for any reason in which case, SCIENTIFIX will notify Customer in writing and Customer will not be responsible for any expenses incurred by SCIENTIFIX thereof.
5. Price and Other Charges
The price of Products (other than Custom Products) and Instrument Services shall be SCIENTIFIX's then-current published catalog prices at the time of order unless otherwise agreed to in writing by SCIENTIFIX. SCIENTIFIX reserves the right to change the Product's published catalog price at any time without notice. The price for Custom Products shall be as specified in the quotation or otherwise agreed to in writing by SCIENTIFIX. SCIENTIFIX may correct any misstated price in the order confirmation in which event, Customer may cancel the order or return the delivered Product in accordance with Section 7. In addition to the price, Customer is responsible for any applicable shipping and handling charges, which will be added to the invoice. Customer is also responsible for any taxes, duties, levies and other government fees that may apply to the order. Such taxes, duties, levies or fees will be added to the invoice unless Customer claims an exemption and provides a valid signed certificate of exemption or letter of exemption. In countries where SCIENTIFIX is not permitted to add such charges to the invoice, Customer is responsible for remitting payment of such amounts to the appropriate authority.
An invoice for Products will be sent with the shipment of Product and shall be due 30 days from shipment. An invoice for Instrument Services will be due 30 days from the date of invoice. SCIENTIFIX's failure to provide an invoice shall not relieve Customer's payment obligation. All payments shall be in US Dollars. If Customer places the order with a credit card, the credit card will be charged on the invoice date. SCIENTIFIX may charge Customer a late payment fee equal to the lesser of 1.5% or the maximum rate allowable by law per month on any past-due balance without prejudice to other remedies available by law. If Customer's account is referred to collection, Customer shall pay any collection costs including reasonable attorneys' fees.
7. Product Delivery and Returns
7.1 Delivery. Products may be shipped in a single shipment or in installments. Shipment in installments will be invoiced separately except that Customer will not be charged additional shipping charges if an order shipped in installments due to a backorder. Products may also be scheduled to ship as a standing order. All Products that are not instruments will be shipped FCA shipping point as defined in Incoterms 2010. SCIENTIFIX will not be liable for any delays, loss or damage occurring during shipment. Products that are instruments will be shipped FOB destination as defined in Incoterms 2010. Upon receipt of Product, Customer shall notify SCIENTIFIX's Customer Service Department of any shortages or damages within 72 hours of receipt.
7.2 Returns. Customer shall notify SCIENTIFIX's Customer Service Department of scope for return of unwanted goods within 72 hours of product receipt. Products may be returned only upon SCIENTIFIX's approval in which case, SCIENTIFIX's Customer Service Department will, at its sole discretion, provide a return material authorization number and return instructions, or require destruction of the Product at Customer's site. Products authorized for return must arrive at SCIENTIFIX's facilities in a satisfactory condition for resale unless the damage or defect was caused by SCIENTIFIX. At SCIENTIFIX's request, Customer shall provide a properly completed certificate of decontamination (for equipment) prior to the return. A restocking fee of 30% will be charged on authorized returns that are not due to SCIENTIFIX's error. Shipping charges will not be refunded. If Customer is issued a credit for a return and Customer's account is outstanding, Customer may use such credit towards the outstanding balance.
8. Instrument Services
8.1 Performance. Instrument Services will be performed at Customer's facility at a mutually agreed time Monday through Friday from 9:00am to 5:00pm local time, excluding holidays. Telephone support hours will be available Monday through Friday from 7:00am to 5:00pm AEDT, excluding holidays. Instrument Services may be performed either by SCIENTIFIX or SCIENTIFIX's third party provider in accordance with the Agreement.
8.2 Service Plans. Customer may purchase a Service Plan when purchasing an instrument or anytime thereafter. Instrument Services to be performed pursuant to a Service Plan will be performed in accordance with the description set forth in such Service Plan. The exclusions set forth in Section 9.2 also apply to Service Plans. SCIENTIFIX may immediately terminate a Service Plan without notice if the instrument covered under the Service Plan has been moved or transferred to another location without SCIENTIFIX's written authorization.
8.3 Parts. In the performance of Instrument Services, SCIENTIFIX may, at its sole discretion and expertise, repair or replace any instrument part with a new or refurbished part. SCIENTIFIX shall retain ownership of the replaced part.
8.4 Software Products. From time to time, either pursuant to a Service Plan or otherwise, SCIENTIFIX may offer upgrades to software products incorporated in instruments purchased by Customer from SCIENTIFIX hereunder. Customer shall use the software products and any such upgrades in accordance with this Agreement. SCIENTIFIX shall not be responsible for any software product, including any installation of upgrades or damage or harm to the instruments caused by the upgrades if such software product has been disassembled, decompiled or reverse engineered, copied, modified, enhanced or otherwise changed or supplemented with another software product without SCIENTIFIX's prior written consent. SCIENTIFIX will not be responsible for any Customer developed software.
8.5 Safe Environment. Customer shall ensure that the location where the instrument is to be installed or serviced is safe. SCIENTIFIX reserves the right to inspect Customer's facilities prior to performing Instrument Services to determine safe entry and performance. Upon SCIENTIFIX's request, Customer shall move the instrument to a location that SCIENTIFIX deems safe. For Instrument Services other than Initial Services, Customer shall at its expense, decontaminate the instrument from radioactive, biological, toxic or other dangerous materials or substances and upon SCIENTIFIX's request, provide a certificate of decontamination. SCIENTIFIX will not provide Instrument Services in biosafety level-3 laboratories unless otherwise agreed in writing in which case additional charges and conditions may apply. SCIENTIFIX will not provide Instrument Services in biosafety level-4 laboratories.
9.1 Limited Warranty.
(a) Reagents and Consumables. For Products that are reagents or consumables (except for Custom Products), SCIENTIFIX warrants to Customer that the Product upon delivery, substantially conforms to the specifications as set forth in the applicable Certificate of Analysis in effect at the time of manufacture for a period of 12 months from the date of delivery or the stated shelf life of the Product, whichever occurs first.
(b) Custom Products. For Custom Products, SCIENTIFIX warrants to Customer that the Custom Product upon delivery, substantially conforms to the specifications set forth in the Certificate of Analysis accompanying the shipment of such Custom Product for the shelf life stated therein; or otherwise, the Custom Product upon delivery, shall substantially conform to the specifications and shelf life set forth in the Customer Specification, if any.
(c) Instruments. For Products that are instruments, SCIENTIFIX warrants that the instrument, upon delivery, is free from defects in material and workmanship and conforms to the manufacture's specifications in effect at the time of manufacture for a period of 12 months after installation; provided that installation occurs no later than 30 days after shipment, unless otherwise agreed to by SCIENTIFIX in writing. If the instrument is not installed within 30 days after shipment or as agreed to in writing by SCIENTIFIX, then the warranty period shall begin 30 days after shipment.
(d) Instrument Services. SCIENTIFIX warrants that Instrument Services will be performed at least in accordance with the generally accepted standards prevailing in the instrument service industry for 90 days from the date of completion of Instrument Services.
(a) Reagents, Consumables and Custom Products. The above warranties for Products that are reagents, consumables and Custom Products do not apply if SCIENTIFIX determines that the nonconformance was a result of (1) alteration, misuse or neglect of the Product; (2) failure to use or store Product in accordance with SCIENTIFIX's instructions, including any product label and limited use statement; or (3) accident or acts of nature.
(b) Instruments, Parts and Instrument Services. The above warranties for Products that are instruments and parts and the above warranties for Instrument Services do not apply if SCIENTIFIX determines that the repair or replacement of the instrument or part were necessitated by, or any defects in the instrument or part were caused by: (1) neglect, improper or inadequate use, maintenance, handling or storage of the instrument or parts, including non-compliance with SCIENTIFIX's instructions, product information, site preparation or user manual; (2) installation of software or interfacing or use of the instrument in combination with software or products not supplied or authorized by SCIENTIFIX; (3) connection of the instrument to electrical services or other utilities not in accordance with the instrument's installation requirements; (4) external sources or intrusive activity such as short circuits, incorrect voltages, surge in voltage, computer viruses, hackers, or other unauthorized interactions with the instrument or software that detrimentally affect its normal operation; (5) use of incompatible solvents or chemicals on the instrument or part; (6) repair, modification, alteration, installation, de-installation, or transportation of an instrument or part thereof by anyone other than by SCIENTIFIX or a person authorized by SCIENTIFIX; (7) radioactive parts or parts contaminated with biological, toxic or other dangerous materials or substances; (8) normal wear and tear, negligence, accident or acts of nature; (9) instruments sold as a used product; and/or (10) any defect or damage to the instrument or part not caused by SCIENTIFIX. ADDITIONALLY, ANY INSTRUMENT INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION, ALTERATION, OR OTHER TAMPERING PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SCIENTIFIX OR SCIENTIFIX'S THIRD PARTY PROVIDER WITHOUT SCIENTIFIX'S PRIOR WRITTEN CONSENT, OR USE OF ANY PART NOT SUPPLIED BY SCIENTIFIX, WILL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES FOR THE INSTRUMENT, PARTS AND INSTRUMENT SERVICES.
9.3 Warranty Claims and Remedies.
(a) Products. Upon suspect of a non-conforming Product, Customer must promptly notify SCIENTIFIX within the applicable warranty period, and if SCIENTIFIX determines that the Product is non-conforming and authorizes the Product for return or destruction, Customer shall do so in accordance with SCIENTIFIX's instructions. For timely and valid warranty claims, SCIENTIFIX, at its sole discretion and expense, will replace the non-conforming Product or provide a credit or refund.
(b) Instrument Services. Upon suspect of a non-conforming Instrument Service, Customer must promptly notify SCIENTIFIX within the applicable warranty period, and if SCIENTIFIX determines that the Instrument Service is non-conforming, SCIENTIFIX at its sole discretion and expense, will re-perform the Instrument Services. SCIENTIFIX may authorize a third-party provider to re-perform the Instrument Service.
9.4 Limitation of Warranty. THE ABOVE WARRANTIES DO NOT EXTEND TO ANYONE OTHER THAN THE CUSTOMER AS THE ORIGINAL PURCHASER OF PRODUCT OR INSTRUMENT SERVICE. THE ABOVE WARRANTIES ARE SCIENTIFIX'S ONLY LIABILITY AND CUSTOMER'S ONLY REMEDY FOR ANY NON-CONFORMING PRODUCT OR INSTRUMENT SERVICE. EXCEPT FOR THE ABOVE WARRANTIES, ALL PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND SCIENTIFIX EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES REGARDING RESULTS OBTAINED FROM THE USE OF ANY PRODUCT.
9.5 Third Party Products. SCIENTIFIX makes no warranty whatsoever regarding products manufactured or furnished by third parties. Any such products are subject to the warranties of their respective manufacturers, if any. SCIENTIFIX will transfer any such warranties to Customer to the extent they are transferable.
10. Compliance with Laws
SCIENTIFIX represents to the best of SCIENTIFIX's knowledge that Products are manufactured and supplied, and Instrument Services are performed in compliance with all applicable laws and regulations. Customer represents and warrants that it will use the Products in compliance with all applicable laws and regulations. SCIENTIFIX makes no representation that the Products and Instrument Services will meet or satisfy standards of any governmental body, including the U.S. Food and Drug Administration. It is Customer's responsibility to ensure that the Product and Instrument Service are adequate to meet Customer's regulations or certification requirements of any governmental body or other organization, including, but not limited to, any requirement of the U.S. Food and Drug Administration.
11. Use and Restrictions
11.1 Authorized Use. Customer acknowledges that SCIENTIFIX sells Products for internal research use only unless labeled otherwise. Products that are for internal research use are labeled "Research Use Only" and are not for use in any diagnostic or therapeutic procedures. Products labeled "For Laboratory Use" are for general purpose use as defined by the U.S. Food and Drug Administration ("GPR"). Except as otherwise agreed to by SCIENTIFIX in writing, in selling the Products, SCIENTIFIX only conveys to Customer the non-transferable right to use the quantity of Products purchased for its intended use as stated herein and Customer may not use Product in any commercial applications, or transfer, resell, or modify Product for resale to a third party. Customer may use GPR Product as permitted by the U.S. Food and Drug Administration. If Customer needs commercial use rights to a Product (including the right to use in manufacturing, quality control, or to perform fee-for-services), Customer must contact SCIENTIFIX's Licensing Department at email@example.com. Products may also be subject to other licenses, limited use statements, including any notice to purchaser and/or limited use label licenses ("Limited Use Label License"), which may be located at www.scientifix.com.au or specified on the product label, quotation or other documentation accompanying the Product. Any applicable Limited Use Label Licenses are incorporated herein by reference as if set forth in their entirety. By using the Product, Customer hereby accepts the terms and conditions of all applicable Limited Use Label Licenses.
11.2 Risks and Hazards. Customer shall learn about any risks and hazards associated with the Product and use and handling thereof, and inform others of such risks and hazards as necessary. Customer shall comply with SCIENTIFIX's instructions, including any Material Safety Data Sheets (MSDS), which is available at www.scientifix.com.au or by contacting SCIENTIFIX's Technical Support Department at 1800-007-900.
12. Software Products
With respect to any software products incorporated in an instrument purchased by Customer hereunder, Customer acknowledges that SCIENTIFIX is licensing such software product and not selling it to Customer. SCIENTIFIX hereby grants to Customer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use the software product solely for Customer's internal use of the instrument purchased by Customer hereunder. Customer may not sell, rent, lease, loan, transfer or assign such software product to any third-party. Customer shall not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software product. SCIENTIFIX shall be entitled to terminate this license if Customer fails to comply with any term or condition herein.
13. Ownership; Intellectual Property
As between SCIENTIFIX and Customer, SCIENTIFIX exclusively owns all intellectual property rights related to Products and Instrument Services, including but not limited to all methods, materials and equipment ("SCIENTIFIX Technology"). Nothing in these Terms shall be deemed or construed (1) as a license to or grant of any SCIENTIFIX Technology or any other intellectual property, whether implied, by estoppel or otherwise except to the extent expressly granted in Sections 11.1 and 12; (2) to limit SCIENTIFIX's rights to enforce its intellectual property rights to SCIENTIFIX Technology, including, without limitation, using the Product beyond the use granted under any Limited Use Label License or statements applicable to the Product; (3) as granting Customer any right to be supplied with Products or components thereof beyond those supplied by SCIENTIFIX in accordance with these Terms; or (4) as a license or grant of any right to manufacture or to have manufactured the Products. Customer must obtain all necessary approvals, intellectual property rights, licenses and permissions that Customer may need to use the Products.
14.1. SCIENTIFIX Indemnity.
(a) General Indemnity. SCIENTIFIX will defend and indemnify Customer against third-party claims for personal injury, death, or property damage occurring while SCIENTIFIX's employees are performing Instrument Services at Customer's facilities to the extent such claims are caused by the negligent acts or negligent omissions by SCIENTIFIX's employees.
(b) Infringement Indemnity. SCIENTIFIX will defend and indemnify Customer from and against infringement damages finally awarded in any legal action brought by a third party against Customer to the extent that the action is based on claim that the manufacture and sale of Product infringes on such third party's patent, copyright, trademark or other intellectual property right, and that SCIENTIFIX had actual knowledge of such intellectual property right and actual infringement at the time SCIENTIFIX ships the Product. This infringement indemnity does not apply to claims arising from: (1) the manufacture or sale of Product made pursuant to Customer's instructions, specifications, statement of work, or other directions, including Customer Specifications; (2) Customer's use or resale of Products; (3) modifications to the Products made by Customer or any third party; (4) products originating from third parties; (5) Customer's failure to acquire rights to use the Product, including as required by this Agreement; (6) products made, assembled or labeled in reliance on materials and information provided by Customer; or (7) Customer's failure to comply with this Agreement. SCIENTIFIX shall have no obligation to indemnify Customer against any claims for infringement if SCIENTIFIX, at its sole option and expense, either: (1) secures the right for Customer's use of Product; (2) substitutes the Product with another suitable product with similar functionality; or (3) requires the return of Product for a refund of the price paid, and for the return of Products that are instruments, SCIENTIFIX will deduct a reasonable amount for the instrument's use, damage and obsolescence.
THIS INDEMNITY IS SCIENTIFIX'S ONLY LIABILITY AND CUSTOMER'S ONLY REMEDY FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT.
(c) Conditions to SCIENTIFIX's Indemnity. Customer shall notify SCIENTIFIX in writing immediately upon becoming aware of any such claims, and shall not admit liability or take any other action that could affect the defense of such claim. Customer shall allow SCIENTIFIX to control the defense or settlement of such claim and reasonably assist SCIENTIFIX in thereof.
14.2 Customer Indemnity. Customer will defend and indemnify SCIENTIFIX, its affiliates and their respective officers, directors, employees and agents from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys' fees) in connection with a claim asserted by a third party arising out of: (a) negligence or willful misconduct of Customer, its agents, employees, representatives or contractors; (b) SCIENTIFIX's compliance with Customer's instructions, specifications, statement of work, or other directions, including Customer Specifications; (c) alleged infringement from the use of Product with materials, equipment or software not supplied by SCIENTIFIX, where the Product itself would not be infringing; (d) Customer's use of Products in an application or environment for which it was not designed or intended; (e) modifications to the Products not approved in writing by SCIENTIFIX; (f) Customer's failure to use Product in compliance with the Limited Use Label License; or (g) Customer's failure to acquire rights to use the Product, including as required by the Agreement.
15. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY MAY HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SCIENTIFIX SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY RESULTING FROM A PRODUCT ERROR OR FAILURE OF A PRODUCT PERFORMANCE IN ACCORDANCE WITH ITS SPECIFICATIONS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR SCIENTIFIX'S LIABILITY FOR BREACH OF WARRANTY, THE TOTAL LIABILITY OF SCIENTIFIX OR ITS AFFILIATES UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE PRODUCT OR INSTRUMENT SERVICE.
16. Export Control
Customer acknowledges that Products are subject to US export control laws and regulations, and represents and warrants that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Products, software, or technology (including products derived from or based on such technology) to any destination, entity, or person prohibited by the laws or regulations of the United States.
17. Technical Assistance
SCIENTIFIX may provide technical assistance and information regarding Products and Instrument Services in gratis at its sole discretion. Customer assumes sole responsibility for any reliance on or use of such assistance and information and SCIENTIFIX makes no warranty thereon.
Customer may not assign the Agreement without SCIENTIFIX's written consent. SCIENTIFIX may assign the Agreement without consent. The Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to any conflict of law principles that would require the application of the laws of a different jurisdiction, except that matters pertaining to patents and other intellectual property rights shall be governed by the laws of the jurisdiction in which such intellectual property rights exist. The Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods. Except for payment obligations, neither party shall be responsible for failure to perform its obligations due to natural disaster or other force majeure causes beyond its reasonable control. Neither party shall use the name of the other party or of its employees in any promotion or publication without the other party's prior written consent. The failure of either party to assert a right hereunder or insist upon compliance with any term of the Agreement shall not constitute a waiver of such right or excuse a similar subsequent failure to perform any such term by the other party.