1. Acceptance. All sales are subject to and conditioned upon the terms and conditions contained herein, and upon Buyer’s acceptance of these terms and conditions. The terms and conditions contained herein will be controlling and Laboratory Supply Network, Inc. (“LSN”) expressly rejects any and all inconsistent and / or additional terms and conditions contained in any document issued by Buyer. Buyer's receipt of the items ordered (the “Products”), or LSN’s commencement of the services with Buyer consent and approval, provided hereunder will constitute Buyer's acceptance of this Agreement. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by LSN and Buyer. LSN's failure to object to terms contained in any subsequent communication from Buyer shall not constitute a waiver or modification of the terms set forth herein.
2. Price. All prices published by LSN or quoted by LSN’s representatives may be changed at any time without notice. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of LSN’s original stated price or price quotation.
3. Specifications. Product specifications are subject to change without prior notice.
4. Taxes. Prices are exclusive of all sales tax, value added tax, and any other taxes and duties imposed with respect to the sale, delivery, or use of any Products. All taxes and duties must be paid by Buyer. If Buyer claims any exemption Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
5. Payment Terms.
a. LSN may invoice Buyer upon shipment for the price and all other charges payable by Buyer and payment shall be net thirty (30) days from the date of invoice. Payments are to be made in freely available United States dollars. If Buyer fails to pay any amounts when due, Buyer shall pay LSN interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by LSN in collecting such overdue amounts or otherwise enforcing Seller's rights hereunder. Payments will be considered late when they are not received by LSN by the due date. LSN reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to Seller, at any time that Seller believes in good faith that Buyer's financial condition does not justify the terms of payment specified.
b. With each payment, Buyer agrees to provide LSN with the invoice number and account number to which the payment is to be applied. If Buyer does not provide such information with a payment, LSN shall apply the payment to outstanding receivables, beginning with the most-aged receivables first.
c. It is hereby agreed that in the event Buyer shall become insolvent, or file a voluntary petition in bankruptcy, or if a petition in bankruptcy shall be filed against Buyer, or if any application for receivership of any nature be filed or a receiver be appointed for Buyer’s property or assets, then all outstanding balances of principal and interest owed by Buyer to LSN shall forthwith be immediately due and payable.
d. Buyer agrees that any and all Product(s) for which Buyer has not made full payment of all principal plus any interest, fees and other costs due and payable to LSN shall not be used as security or collateral for any loans or other forms of debt, which loans or other debt would create a lien and thereby encumber said Product(s).
6. Shipping Terms.
a. Title of all Products shall transfer to Customer upon delivery of such Products to the carrier. LSN will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. All shipping dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller's reasonable control. In the event of a delay due to any cause beyond Seller's reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay.
b. Delivery of Products is to be made to the loading dock or, where a loading dock does not exist, to a door at the ship-to address. LSN is not expressly not responsible for providing or assuming the cost of any further services including, but not limited to, inside delivery, installation, moving or removal of old equipment unless expressly agreed upon in writing between LSN and Customer.
7. Returns and Cancellations.
a. Laboratory Supply Network does not have its own return policy. Instead, we honor the respective return policies of our suppliers. The return policies for each of the manufacturers which we represent can be found on our corporate website at http://www.labsup.net/return-policies/. In the event that a supplier's return policy is not listed on that website, it will be assumed that all returns, including any fees associated with returns, will be solely at the supplier's discretion.
b. Cancellations are at LSN's discretion and may be subject to a cancellation fee no greater than 10%.
8. Warranty
a. Products supplied by LSN that are obtained by LSN from a third party supplier (the “Supplier”) are not warranted by LSN, but LSN agrees to assign to Buyer any warranty rights the Supplier has bestowed to LSN.
b. Any Products manufactured or private labeled by LSN are warranted to operate or perform substantially in conformance with LSN's published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the product documentation, published specifications or package inserts. If a warranty period is not stated in the aforementioned documents, the warranty period shall be one (1) year from the date of shipment. For the duration of the warranty period, LSN agrees to repair or replace, at LSN's option, defective Products so as to cause the same to operate in substantial conformance with said published specifications; provided that Buyer shall (a) promptly notify Seller in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the warranty claim; and (b) after Seller's review, Seller will provide Buyer with service data and/or a Return Material Authorization ("RMA"), which may include biohazard decontamination procedures and other product-specific handling instructions. Then and only then may Buyer may return the defective Products to LSN with all costs prepaid by Buyer. Replacement parts may be new or refurbished, at the election of LSN. All replaced parts shall become the property of LSN. Shipment to Buyer of repaired or replacement Products shall be made in accordance with the delivery provisions of LSN’s Terms and Conditions of Sale.
c. LSN HEREBY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES, WHETHER STATUTORY, EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
d. Any warranties provided by LSN to Buyer will be null and void if the Product is damaged, destroyed, or otherwise rendered deviated from conformance with published specifications as a result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) alteration of, or tampering with, the Products by buyer (v) use of the Products in a manner for which they were not designed (misuse), even if such misuse is foreseeable, (vi) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vii) improper storage and handling of the Products or (viii) use of the Products in combination with equipment not supplied by LSN.
9. Research Use Only. The Products are intended for research use only and are not to be used for any other purpose, including without limitation, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans (collectively “misuse”), even if such misuse is foreseeable.
10. Limitation of Liability. IN NO EVENT SHALL LSN HAVE ANY OBLIGATION OR LIABILITY FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, USE OR GOODWILL, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE TOTAL LIABILITY OF VWR (INCLUDING ITS SUBCONTRACTORS AND AGENTS), IF ANY, FOR DAMAGES RELATING TO ANY PRODUCTS SOLD UNDER THIS AGREEMENT SHALL BE LIMITED TO THE PRICE PAID FOR SUCH PRODUCT(S)
11. Indemnification. Buyer shall indemnify, defend with competent and experienced counsel and hold harmless LSN, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by LSN where the Product itself would not be infringing; (iii) LSN’s compliance with designs, specifications or instructions supplied to LSN by Buyer; (iv) use of a Product in an application or environment for which it was not designed (misuse) even if such misuse is foreseeable; or (v) modifications of a Product by anyone other than LSN without LSN's prior written approval. Furthermore, Buyer acknowledges that for products shipped directly from a Supplier to Buyer LSN has no means by which to create a defect in the Product or its packaging, software, accessories, and documentation (collectively the “Items”) and has no opportunity to be negligent or malicious in the manufacturing, delivery, or handling of the Items.
12. Export Controls. Buyer acknowledges that Items are subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the "EAR"), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Buyer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Buyer shall cooperate fully with LSN in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold LSN harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants, agents, or customers.
13. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New Hampshire without regard to principles of conflicts of law. Any claim, action, or suit between Buyer and LSN that arises out of or relates to performance of this Agreement shall be brought and conducted solely and exclusively within the Rockingham Superior Court for the State of New Hampshire. Provided, however, that if any such claim, action, or suit may be brought only in a federal forum, it shall be brought and conducted solely and exclusively within the United States District Court for the District of New Hampshire. Supplier, by execution of this contract, hereby consents to the in personam jurisdiction of said courts.
a. Should either party require litigation to enforce the terms and conditions of this Agreement, the reasonable attorney’s fees and costs of litigation of the prevailing party shall be paid by the opposing party.
14. Force Majeure. In the event either party is prevented in whole or in material part from performing its obligations under this Agreement solely as a result of force majeure, upon the prompt giving of notice to the other party detailing such force majeure event and its anticipated duration, the obligations of the party so prevented shall be excused during such period of delay, and such party shall take whatever reasonable steps are necessary to relieve the effect of such cause as rapidly as possible.
15. Relationship of Parties. Neither party, its employees, agents, or subcontractors shall be considered to be an agent or representative of the other party. Neither party has the right or authority to assume or to create any obligation or responsibility on behalf of the other party. This Agreement shall not be construed to create a joint venture or partnership between the parties.
16. Assignment. Buyer may not delegate any duties nor assign any rights or claims hereunder without Seller's prior written consent, and any such attempted delegation or assignment shall be void.
17. No Modifications. No Waivers. No amendment, modification or waiver of these terms shall be binding on either party unless reduced to writing and signed by an authorized officer of the party to be bound, and in the case of a waiver, shall be effective only in the specific instance and for the specific purpose for which given, and shall not be construed as a waiver of any subsequent breach. The failure of either party to enforce at any time or for any period of time any of the provisions of this Agreement shall not be construed as a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision. No course of dealing, usage of trade or course of performance shall supplement, explain or amend any term, condition or instruction of this Agreement, or any shipment of Products hereunder.
18. Interpretation. Any provision of this Agreement held to be void, illegal, or unenforceable shall be restated to lawfully reflect the parties' original intent to the fullest extent possible. All other provisions shall remain in full force and effect.
19. Authority. Each party represents and warrants that it is authorized to enter into this Agreement and that in so doing it is not in violation of the terms or conditions of any contract or other agreement to which it may be a party.
20. Entire Agreement. All prior understandings and agreements between LSN and Buyer are merged into this Contract. This Contract completely expresses their full agreement. This Contract has been entered into after full investigation and with neither party relying upon any statements made by any individual or party not set forth in this Contract. This Agreement constitutes the entire Agreement between the parties as to its subject matter, and shall be binding upon and inure to the benefit of LSN and its assigns, legal representatives, heirs or successors.
21. Captions. Paragraph captions in this contract are for convenience of reference only and in no way define, limit or describe the scope of this Contract and shall not be considered in the interpretation of this Contract nor any provision hereof.
22. Additional Instruments. Each party shall, at any time, and from time to time, execute, acknowledge where appropriate, and deliver to the other party such further or additional documents and take such other action as may be reasonably requested by the other party in order to carry out and fulfill the intent and purpose of this Contract. This paragraph shall survive the fulfillment of each party’s other obligations under this Contract.
23. Termination/Fulfillment. This Contract shall be terminated upon fulfillment of all of each party’s obligations hereunder.
24. Benefit Restriction. This Contract is intended for the exclusive benefit of the parties hereto and, except as otherwise expressly provided herein, shall not be to the benefit of and shall not create any rights in, or be enforceable by, any other person or entity.
25. Read in Full. The parties to this Contract hereby acknowledge that they have read this Contract in its entirety, are familiar with all of the terms of this Contract and are signing this Contract of their own free will and not under duress.
26. Attorney Review. This Contract is a legally binding document and the parties to this Contract are strongly encouraged to seek legal advice. Failure to seek legal advice is in no way a defense against a party’s obligations under the terms and conditions of this Contract.
