STANDARD TERMS AND CONDITIONS OF SALE
1. General; Definitions.
1.1 Unless otherwise agreed in writing by Siloam Biosciences Inc. (“Siloam”), the terms and conditions contained herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior communications and agreements. Acceptance by Siloam of Buyer’s order, or Buyer’s acceptance of Siloam’s proposal, is expressly limited to and conditioned upon Buyer’s acceptance of these terms and conditions, which may not be changed or waived, except in a writing signed by the parties. Any additional, inconsistent or different terms and conditions contained in Buyer’s purchase order or other documentation are hereby expressly rejected.By placing your order with Siloam you agree to accept Siloam’s terms and conditions without exception or addition.
1.2 In these terms and conditions of sale: (I) “Buyer” means the person or entity that accepts a quotation of Siloam for the sale of the Products or whose order for the Products is accepted by Siloam; (ii) “Conditions” means the standard terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between Buyer and Siloam; (iii) “Order” means an order for Products placed by Buyer with Siloam, and accepted by Siloam; (iv) “Products” means the products ordered by a Buyer and shall include all products, parts and accessories furnished to Buyer by Siloam.
2. Shipping; Delivery.
2.1 Unless otherwise agreed to in writing, the Products shall be delivered F.O.B. point of shipment. Siloam reserves the right to deliver in installments. Buyer shall incur all costs of, or incidental to, shipment of the Products, including, without limitation, freight, insurance, and dry ice. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, title to and risk of loss of the Products shall pass to Buyer and delivery shall be deemed to be complete upon delivery of the Products to a private or common carrier at the point of shipment.
2.2 Siloam shall not be liable for failure to deliver or complete an Order at a certain date if such failure is caused by: strike, lockout, breakdown of plant, government decrees, fire, Quality Control non-release, carrier delays, raw materials shortages, war (declared or undeclared), act of God or by any other eventuality beyond the reasonable control of Siloam.
2.3 Proof of Delivery – Requests for proof of delivery for any invoice must be submitted in writing before the invoice is older than 60 days. Once an invoice is older than 60 days, Siloam shall have no responsibility for supplying proof of delivery. It is understood that no request for proof of delivery is an acknowledgement that the Products(s), as invoiced, have been received.
3. Shortages or Damaged Shipments
3.1 No claim for Products damaged in transit will be considered by Siloam unless an appropriately qualified signature (example given: <<Products received/damaged (signed))>> is clearly made by the Buyer on the delivery note or carrier’s consignment note at the time of delivery of the Products. In order for a claim for Products damaged in transit to be considered by Siloam, the Buyer agrees to deliver this document with an appropriately qualified signature to Siloam within three days of receipt of the shipment.
3.2 The carrier that delivers the product to the customer is responsible for any and all shortages and damage while in transit.
3.3 Shortage – 1) Re-inspect shipping container and packing materials carefully before disposing of them. 2) Check to be sure that missing items were not removed prior to complete unpacking. 3) If there is a shortage, notify Siloam’s Customer Service Department immediately.
3.4 Damage from Carrier – If damage is result of carrier 1) Contact local office of the delivering carrier immediately and request that carrier’s inspector examine damaged product(s) and issue inspection report. Shipping container and packing material must be retained until inspected. 2) After inspection, forward the inspection report and the damaged product(s) prepaid to Siloam. Siloam will handle the paperwork connected with the filing of claim.
3.5 Internal Damage – All claims regarding damage to internal product. Buyer must report within 24 hours of delivery to Siloam’s Customer Service Department.
4.0 Returns and Restocking Charge
4.1 1) In order to receive proper credit, all returns must be authorized by contacting Siloam’s Customer Service department. 2) Products returned to Siloam for credit must be received by Siloam within 30 days of the initial shipment and must be in saleable condition. 3) No Product(s) may be returned without a Return Authorization letter from Siloam’s Customer Service Department.4) In all cases, Siloam’s Return Authorization letter must be enclosed with the Product(s) being returned as it contains your account and invoice number. 5) Products may only be returned with prior written authorization from Siloam. Siloam accepts no responsibility for products returned without prior written authorization.6) All requests for adjustments must be made within 30 days from the invoice date. 7) A restocking charge of 20% of the selling price will be made on returns unless an error was made by Siloam. Your prompt compliance with the above procedure will enable Siloam to make adjustments with minimal delay.
4.2 All returns must be sent Freight Prepaid to only the location indicated on the Return Authorization.
5.1 No Order that has been accepted by Siloam may be cancelled by Buyer except with the agreement in writing of Siloam and on terms that Buyer shall indemnify Siloam in full against all loss (including loss of revenue), costs, including the cost of all labor and materials used, damages, charges and expenses incurred by Siloam. Sales are considered non-cancellable, non-creditable and non-refundable unless authorized in writing by a duly authorized Officer of Siloam.
6.1 Unless otherwise expressly agreed in writing, the price for the Products shall be Siloam’s prevailing price at the time the Order is accepted by Siloam or any other price expressly quoted by Siloam to Buyer. Price lists from Siloam are for general information and do not constitute a binding, open offer by Siloam for the sale of Products. Siloam reserves the right to modify its standard prices at any time without notice; prices for some Products may change frequently due to market fluctuations. Pricing includes standard packaging, labels and raw material and production costs, but does not include the following, which Buyer shall pay: handling charges; federal, state and local sales, use, excise, value added, gross receipts or other such taxes; customs duties; freight charges; special packaging (e.g., dry ice); and any insurance desired by Buyer. If Buyer is exempt from an applicable tax or duty, then Buyer must provide Siloam with a valid exemption certificate before shipment of products. Foreign shipments placed with Siloam may require additional charges for documentation and overseas packaging. Such charges will be clearly identified on Siloam’s invoices. Some of these fees may be added to your invoice.
7.1 Unless otherwise expressly agreed in writing, payment is due 30 days from the date of invoice. If payments are not made when due, Buyer shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1 1-2% per month, which is an annual interest charge of 18%, to past due accounts, or the highest applicable rate allowed by law on all such overdue amounts. Siloam, in addition to all other remedies, may repossess any Product(s) for which payment is past due, without notice.
220.127.116.11 The customer agrees to pay all costs and expenses of collection and/or repossession (including attorney fees) that are reasonably incurred by Siloam following Buyer’s default or delay in payment. Siloam may ask for a credit check or guarantee, either before or during the fulfillment of an Order.
8. Special Products
8.1 If Buyer desires to purchase customized or special Products (“Special Products”) from Siloam (unique raw materials, special manufacturing processes or labeling or otherwise) and if Siloam, in its sole discretion, is willing to consider the same, then Siloam will prepare a quote for those Special Products. Any change to specifications for a Product requires a new quote. Siloam will not accept an Order for Special Products unless Siloam has issued a quote for those Special Products.
10. Limited Warranties and Limitations of Liability
10.1 Siloam represents and warrants that the Products will conform to their specifications at the time of delivery. Siloam does not warrant that the Product may be suitable for the manufacture of any intermediate or finished product or any use or application. The Buyer warrants that: (a) its further use of the Product shall be at its sole risk; (b) it has evaluated the use of the Product for its use; and (c) its sole recourse to Siloam shall be as provided herein. Should any part of the Products be found to be nonconforming when used under the conditions specified by Siloam, Siloam’s liability will be limited to the repair or replacement of the nonconforming part of the Products or refund of the purchase price of the Products, at Siloam’s sole discretion, provided that Siloam’s inspection reveals the Products to be nonconforming within the terms of this limited warranty.
10.2 Siloam shall not be responsible for any nonconformity in the Products that (i) is created after the Products are shipped by Siloam, including any nonconformity resulting from Buyer’s handling, maintenance or storage of the Products; (ii) results from Products composed of materials, specifications or designs provided by Buyer, (iii) results from modifications to the Products by Buyer or others.
10.3 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, SILOAM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO THE PRODUCTS OR THEIR CHARACTERISTICS, QUALITY OR PERFORMANCE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES AND ANY SUCH WARRANTIES AND REPRESENTATIONS ARE HEREBY EXPRESSLY DISCLAIMED.
10.4 Any claim by Buyer that is based on any failure of a Product to correspond with specifications, shall (whether or not delivery is refused by Buyer) be notified in writing to Siloam within 10 days from the date of delivery of such Product or (where the failure was not apparent on reasonable inspection) within 5 days of such delivery. If delivery is not refused, and Buyer does not notify Siloam accordingly, Buyer shall not be entitled to reject the Product and Siloam shall have no liability for such failure.
10.5 IN NO EVENT SHALL SILOAM BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE including, but not limited to, loss of profits or revenue, loss of use of the Products, delays, or claims of customers of the Buyer or other third parties for such or other damages. Siloam’s liability on all claims, whether in contract, warranty, negligence, tort, strict liability, or otherwise for any loss or damage arising out of, or connected with an Order or the performance or breach thereof, or from the design, manufacture, sale, or delivery of any Product shall in no case exceed the purchase price of the Product.
10.6 Products are supplied for research use only and solely for laboratory or manufacturing applications, and are not intended for medicinal or diagnostic use. Siloam reserves the right to restrict the sale of some Products to degreed researchers and those individuals purchasing products for degreed researchers. Siloam shall not be liable to Buyer or to any third party for any unauthorized use or administration of the Products. Products are intended for use by Buyer only and re-sale; including but not limited to being a component of a kit for resale, part of an assay system for resale or other component for resale, is expressly prohibited without the express written permission or license by Siloam Biosciences, Inc.
11. Information Furnished Buyer
11.1 Buyer agrees to hold in confidence all pricing, methods, processes, techniques, shop practices, formulae, compounds, compositions, organisms, equipment, research data, marketing and sales information, Buyer lists, plans and all other know-how and trade secrets owned by Siloam or in Siloam’s possession and disclosed or provided to Buyer as a result of any Order. Until any of the foregoing has been published, disclosed or provided to the general public, Buyer agrees not to use, except in its own research as may be necessary for the use of Products, or disclose or provide any of the foregoing to others, without first obtaining Siloam’s prior written consent.
12. Choice of Law
12.1 The validity and interpretation of these terms and conditions of sale shall be governed in all aspects to the laws of the United States and the State of Ohio. The parties hereby submit to the exclusive jurisdiction of the federal and state courts in the State of Ohio. The headings of provisions herein are for convenience only and are not intended to be used in construing the meaning of such provisions.
13. Force Majeure
13.1 Siloam shall not be liable to Buyer for any loss, damage, detention, or delay of Products, nor be deemed to be in default under these terms and conditions of sale, due to acts of God, war (either declared or undeclared), fire, strikes, labor difficulties, acts or omissions of any third party or of Buyer, compliance with import or export regulations, insurrection, riot, embargoes, delays or shortages in transportation, defects or delays in the performance of its suppliers or subcontractors, inability to obtain necessary labor or materials from usual sources or any similar or dissimilar causes beyond Siloam’s reasonable control. In the event of delay due to any such cause, Siloam shall be at liberty to defer the date of delivery or to cancel the Order.