LEGAL INFORMATION FROM OLIGOS, ETC.
Terms and Conditions
1. Entire Agreement. The Purchase Order and these Standard Terms and Conditions constitute the contract (the “Agreement”) for the sale by Oligos Etc., Inc., an Oregon Corporation (“Company”) to the purchaser identified on the Purchase Order (the “Customer”) of the goods and services described therein (the “Products”). The Agreement represents the entire understanding and agreement between Company and Customer and is the complete and exclusive statement of the terms and conditions relative to Customer’s purchases of Products from Company. Any and all oral representations, promises, warranties, amendments or statements shall be given no force or effect. Any provision of any purchase order or confirmation submitted by Customer that conflicts with the Agreement, including any of these Terms and Condition, shall not be binding upon the Company. Any offer by Customer stating terms additional to or different from the terms hereof, or stating that acceptance hereof is conditioned upon Company’s assent to such additional or different terms is hereby rejected. These Terms and Conditions may be modified only by a writing signed by both Customer and the Company. Acceptance of any order or orders shall not constitute an agreement by Company to accept any future orders from Customer. Company may discontinue accepting orders from Customer at any time, in Company’s sole discretion.
2. Pricing and Shipment. Unless otherwise provided on the applicable Purchase Order, the price for Products shall be Company’s price and charges in effect at time of each shipment. Company reserves the right to change its prices at any time without notice. If prompt payment discounts are offered by the Company, they are applicable only to the cost of the Products and do not apply to or reduce shipping charges and taxes. Prices do not include sales, excise, use or other taxes measured by the sales price. All such taxes are Customer’s responsibility. If the price for Products includes transportation charges, any changes in such transportation charges imposed by the carrier or pursuant to change requests from the Customer shall be for the account of Customer, payable upon demand by the Company. Except as otherwise provided in a Purchase Order, Customer shall pay all costs of transportation, FOB Company’s facility. Customer hereby assures it will not export or re-export the goods in violation of any applicable laws, regulations, or governmental orders, including U.S. versions of the same as applicable. 3. Insurance. Customer shall bear all risk of and responsibility for damage or loss to the Products after Company delivers the Products to the carrier. Customer agrees to provide and maintain adequate insurance for the Products supplied under the Purchase Order to fully protect Company’s interest during the time between delivery and final payment. Loss or damage by fire or other causes during such period shall not relieve Customer from its payment obligations under the Purchase Order.
4. Payment; Interest; Collection; Insecurity. All payments shall be in U.S. dollars. Terms of sale are Net 30 Days of invoice, unless otherwise stated on the Purchase Order. All overdue amounts shall bear interest until paid at 1.5% per month or at the highest applicable lawful rate, whichever is lower. Customer shall pay all collection cost of Company including agency fees and/or attorney fees, in collection efforts for overdue amounts, whether or not a lawsuit is filed, including such fees at trial and on appeal. Whenever reasonable grounds for insecurity arise with respect to performance by Customer, Company may demand terms of payment different from those specified herein, and may demand assurance of Customer’s due performance. Company may, upon making such demand, suspend production or delivery of Products. If within the period stated in such demand, Customer fails or refuses to give adequate assurance of its performance, Company may (i) by notice to Customer treat such failure or refusal as repudiation by Customer of the portion of the Agreement not then fully performed, whereupon Company may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable; or (ii) make shipments under reservation of a security interest and demand payment against tender of documents of title.
5. Inspection. Customer shall promptly inspect the Products upon receipt. Customer must accept any tender of Products by Company substantially in conformity with terms of the Purchase Order. Customer’s acceptance will be conclusively presumed if Customer fails to give Company written notice of rejection within 10 days after receipt of the Products. The notice shall describe the rejected Products and the reasons upon which rejection is based.
6. Performance; Risk Of Loss. Company may deliver the Products in installments unless otherwise stated herein, and may render separate invoices for such installments, which invoices shall be paid when due, without regard to subsequent deliveries. Delay in performance or delivery of any installment shall not relieve Customer of its obligation to accept and pay for prior or remaining deliveries. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to vary any of the terms of this Agreement. Unless otherwise specified on the face hereof, Company shall not be liable, directly or indirectly, for any delay in delivery. Delivery dates are estimated only. In the event of any such delay, Company shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances.
7. Patents. The sale of the Products shall not grant to Customer any right or license of any kind under any patent owned or controlled by Company or under which Company is licensed, provided that the foregoing shall not be understood to limit in any way the right of Customer to use and sell the Products. Company does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of the United States or other patents covering the Products themselves or the use hereof in combination with other products or in the operation of any process. Customer agrees to indemnify and hold Company harmless from any claims, expenses, or damages related to a claim that a Product infringes a third party patent, if the claim is based upon the specifications provided to Company by the Customer.
8. Disclaimer and Limitation of Warranties; Limitation of Remedies.
8.1. Limited Warranty and Disclaimer of Other Express or Implied Warranties. Company warrants that the Products shall conform to the description of such Products as provided to Customer by Company through Company’s catalog, analytical data and other literature. COMPANY MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES REGARDING THE PRODUCTS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Company’s warranties made with this sale shall not be effective if Company has determined, in its sole discretion, that Customer 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 Company.
8.2. Limitation of Damages. COMPANY 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 COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF CUSTOMER OR OTHER USE OR ANY LIABILITY OF CUSTOMER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS 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 WAS CAUSED BY OMPANY’S GROSS NEGLIGENCE. IN NO EVENT SHALL COMPANY, IN THE EVENT OF DELAYS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES FOR ANY DAMAGES OF ANY KIND, DIRECT OR INDIRECT.
8.3. Limitation of Remedies for Defective Products. Any claim by Customer on account of breach of warranty must be in writing and received by Company within 30 days after Customer’s receipt of Products. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE LIMITED TO COMPANY’S CHOICE OF: (a) the repair or replacement of defective Products with conforming Products at the FOB point provided herein; or (b) the refund of the purchase price the price received by Company for the defective products. Customer may reject or revoke acceptance of Products only for defects substantially impairing their functionality and for no other reason. Company shall be given reasonable opportunity to investigate all claims and to inspect allegedly defective Products.
9. Customer Indemnity. CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD COMPANY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS BY THIRD PARTIES FOR PROPERTY DAMAGE, PERSONAL INJURY, LOST PROFITS OR OTHER LOSSES OR DAMAGE, BASED UPON ACTUAL OR ALLEGED WARRANTIES OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED) BY CUSTOMER TO ANY PARTY, OR BASED UPON CUSTOMER’S NEGLIGENCE.
10. Miscellaneous. Except as otherwise provided in this Agreement, any action by customer for breach of any term of this Agreement must be commenced within one year after the date of shipment of the Products. A waiver of any provisions hereof shall not be construed to be a waiver of any other provision hereof, nor shall such waiver be deemed a continuing waiver or a waiver of a subsequent breach of the same provision. This Agreement may not be assigned by Customer except with the prior written consent of Company. The rights and obligations of the parties arising out of this Agreement shall be governed by the law of the State of Oregon, USA, without regard to the conflicts of laws principles thereof. Any suit, action or legal proceeding arising out of or related to this Agreement, or any portion hereof, shall be brought exclusively in a state or federal court located in Portland, Oregon. Stenographic, computer and clerical errors, whether mathematical computations or otherwise, made by Company on either an acknowledgment or invoice issued to Customer shall be subject to correction. If any provision of this Agreement 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 herein are for convenience only; they form no part of the terms and conditions. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns. In the event of any dispute between the parties concerning this Agreement, the prevailing party will be entitled, whether or not a suit or action is instituted, to all costs incurred in connection with such dispute, including without limitation, reasonable attorneys’ fees, whether during arbitration, at trial, on appeal or in collection of any money judgment or award.