STANDARD PURCHASE AGREEMENT
This Standard Purchase Agreement (“Agreement”) includes and incorporates the Quotation Form as well as the Standard Terms and Conditions of Sale, which include, among other things, warranty disclaimers, liability limitations and use limitations. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in the Agreement to the exclusion of all other terms
ORANGE PHOTONICS TERMS AND CONDITIONS OF SALE
1. DEFINITIONS. As used herein (a) “Seller” means Orange Photonics, Inc. and (b) “Buyer” means the party or parties purchasing the goods and any agent, officer, servant, employee or subcontractor of such party or parties.
2. ACCEPTANCE. These Terms and Conditions of Sale (“Terms”) accompany the Seller’s quotation, order acknowledgement, invoice or similar document (each, an “Ordering Document”) and become binding when accepted and are expressly conditioned on Buyer’s acceptance without addition or alteration and shall apply to all goods sold by Seller to Buyer in connection with an Ordering Document to which these Terms are attached. No modification of these Terms shall be of any force or effect unless in writing and signed by Seller. Seller rejects any additional or different terms that Buyer proposes or attempts to impose, and Seller’s acknowledgment or acceptance of any purchase order or any other Buyer forms stipulating different conditions shall not modify these Terms. These terms and conditions shall apply to all future sales of goods by Seller to Buyer as described in clauses (i) through (iii) above unless otherwise agreed upon by the parties in writing.
3. END USE. Buyer has the sole responsibility to determine the suitability of the goods described in the Ordering Document for Buyer’s contemplated use. Buyer assumes all risk and liability for loss, damage, or injury to Buyer’s property or person arising out of the use or possession of the goods furnished hereunder.
4. DEVICE DATA. Buyer acknowledges and agrees that the goods purchased hereunder record and log anonymous usage data, including, without limitation: Raw instrument data, analysis results and timestamp, strain, sample ID, operator and other user entered information. (collectively, “Device Data”). Device Data may be transmitted automatically to Seller via remote means and/or stored onboard on the products via an onboard memory card. Seller’s will only use the Device Data for its internal business purposes to understand product usage characteristics and to improve and provide support for its products. It will only share Device Data with third parties in aggregate, anonymous form, except that Seller may engage third parties to assist Seller in its product research, development and support activities, in which Seller may share Device Data on an aggregated/identifiable basis with those third parties solely as necessary for them to assist Seller.
5. SHIPPING TERMS. Buyer shall pay all freight and transportation costs FOB point of shipment to Buyer. Seller shall select routing and carrier. Buyer is solely responsible for filing timely and proper claims against carriers if goods are lost or damaged in transit. Buyer assumes and shall bear all risk of loss or damage to any purchased goods sold under this order once the purchased goods are delivered to the carrier. Seller assumes no responsibility for damage in transit.
6. TAXES. In addition to the price quoted or invoiced, Buyer shall pay any tax, duty, custom, or other fee that any Federal, State or local governmental authority imposes on this transaction. Buyer shall promptly reimburse Seller if Seller is required to prepay such monies.
7. FORCE MAJEURE. Seller shall have no liability for any delays or nonperformance caused by circumstances beyond Seller’s control including, but not limited to, fire, flood, war, riot, civil commotion, government action, accident, labor trouble or shortage, energy shortage, inability to obtain material, equipment or transportation delays, or acts of God.
8. TERMS OF PAYMENT. Buyer agrees to promptly pay all sums agreed to be paid as set forth on the Ordering Document, together with all costs incurred in the collection of any amount due by suit, or otherwise, including reasonable attorneys’ fees. Unless otherwise noted on the face of the Ordering Document, terms are net cash or check thirty (30) days from date of invoice. If Buyer fails to fulfill the terms of payment, or if Seller shall ever have any doubt as to Buyer’s financial responsibility, Seller may, at its option, and without limitation, (i) require full or partial payment in advance, (ii) demand payment and suspend deliveries until payment is received, or (iii) decline to make further deliveries except upon receipt of cash or satisfactory security. Buyer’s failure to furnish payment upon demand shall constitute a repudiation of this contract, and Seller shall be entitled to receive reimbursement for its reasonable cancellation charges. Seller shall not be liable for any of Buyer’s costs or expenses arising out of the exercise of any of Seller’s rights hereunder. Shipments and deliveries hereunder shall at all times be subject to the approval of Seller’s credit department. Seller’s published prices, extras and payment terms are subject to change without notice and those in effect at time of shipment shall apply. Seller reserves the right to divide an order into separate shipments and separately invoice such shipments, in which case each shipment shall be deemed a separate contract and payment therefore shall be due in accordance with these terms and conditions.
9. CANCELLATION. Accepted orders cannot be canceled, in whole or in part, without Seller’s written consent. If Buyer requests cancellation of orders, such cancellation shall be at Seller’s option. Seller’s failure to meet estimated ship dates will not be sufficient cause for cancellation of orders.
10. WARRANTY. Seller warrants that product supplied hereunder shall, at the time of delivery to Purchaser conform to the published specifications of Seller and to be free from defects in material and workmanship under normal use and service. Seller’s sole obligation and liability under this warranty is limited to the repair or replacement at its factory, at Seller’s option, of any such product which proves defective within one year after the date of original shipment from Seller’s factory and is found to be defective in material or workmanship by Seller’s inspection. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, OF THE PRODUCT SUPPLIED HEREUNDER, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. SELLER SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
11. DAMAGES. Buyer’s exclusive remedy for claims arising from defective or nonconforming goods shall be limited to replacement thereof or refund of a portion of the purchase price, at Seller’s option. SELLER SHALL NOT BE RESPONSIBLE OR LIABLE FOR CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR OCCURRING IN CONNECTION WITH THE SALE, DELIVERY, USE, PERFORMANCE, OR SERVICE OF THE GOODS SOLD UNDER THESE TERMS. SELLER SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR FOR ANY CLAIM OR DEMAND AGAINST SELLER BY ANY OTHER PARTY. IN NO EVENT WILL SELLER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S AGGREGATE LIABILITY FOR DAMAGES UNDER THESE TERMS, WHETHER ARISING FROM OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT OR OTHER CAUSE OF ACTION, SHALL IN NO CASE EXCEED THE PURCHASE PRICE THAT BUYER PAYS FOR THE PARTICULAR GOODS INVOLVED.
12. RETURNS. No merchandise can be accepted for credit unless Seller has previously authorized the return. Merchandise must be returned freight prepaid within thirty (30) days of receipt. Returns subject to $1000 restocking fee. The customer must notify Orange Photonics to request an RMA# before returning the device. A reasonable description of the reason for the return is required.
13. SEVERABILITY. The provisions of these Terms are severable and if any provision is invalid, void, or unenforceable in whole or in part for any reason, the remaining provisions shall remain in full force and effect.
14. NON-WAIVER. Seller’s failure or refusal to insist upon strict performance of any provisions of these Terms shall not be deemed a waiver of Seller’s rights or remedies, or a waiver by Seller of any subsequent default by Buyer in the performance of or compliance with the terms of these Terms.
15. CAPTIONS. The captions in these Terms are included for convenience and general reference only and shall not be construed to describe define or limit the scope or intent of the provisions of these Terms.
16. ASSIGNMENT. Buyer may not assign these Terms in whole or in part and any attempted assignment shall be void and of no effect.
17. ENTIRE AGREEMENT. These Terms constitute the entire agreement and understanding of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. No agreements, understandings, restrictions, warranties, or representations exist between or among the parties other than those expressly set forth.
18. CLAIMS. Claims for errors, shortages, defective goods and any other claims of Buyer relating to the goods must be made in writing within thirty (30) days after receipt of the goods and must refer to the date and order number. Seller shall have a reasonable opportunity to investigate all claims.
19. APPLICABLE LAW AND JURISDICTION. Buyer and Seller agree that interpretation of and performance under these Terms, as well as all other aspects of the transaction contemplated by these Terms, shall be governed by the laws of the Commonwealth of Massachusetts without regard to that state’s conflict or choice of law rules. Buyer and Seller further agree that any action at law, suit in equity or other judicial proceeding with respect thereto must be brought and maintained in the federal or state courts of record situated in the Commonwealth of Massachusetts.
20. LATE PAYMENT AND COLLECTION COSTS. If Seller decides to place Buyer’s account for collection, Buyer shall pay all costs and expenses thereof, including a reasonable attorneys’ fee. Should Buyer fail to pay any amount that Buyer is required to pay to Seller, Buyer shall pay to Seller interest on the delinquent payment from the due date thereof until paid at the rate of 1½% per month (18% APR), but in any case, not to exceed the maximum lawful rate under any applicable law.
21. GOVERNMENTAL REQUIREMENTS. Any provisions required to be included in a contract of this type by any applicable federal, state or local law, ordinance or governmental rule, regulation, order or other governmental requirement shall be deemed incorporated herein as if fully set out. Notwithstanding anything else, Buyer may not provide to any person or export or re-export or allow the export or re-export of the goods purchased hereunder or any software or anything related thereto (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing, Buyer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Acceptance pursuant to Section 2 is representation and warranty that Buyer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.