1. General. The Purchase Order and these Terms and Conditions constitute the entire agreement (the "Agreement") for the sale by Integrated DNA Technologies (“IDT”) or a company affiliated with IDT 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 IDT and Customer (collectively, “the Parties”) and is the complete and exclusive statement of the terms and conditions applicable to purchases from IDT by Customer. Any and all oral representations, promises, warranties, 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 IDT. These Terms and Conditions may be modified only by a writing signed by both Customer and IDT. Acceptance of any order or orders by IDT shall not constitute an agreement by IDT to accept any future orders from Customer. IDT may discontinue accepting orders from Customer at any time, in IDT's sole discretion.
2. Pricing and Shipment. Unless otherwise stated expressly on the applicable Purchase Order, the price for the Products shall be IDT's price and charges in effect at the time of each shipment. IDT reserves the right to change its prices at any time without notice. Prices do not include sales, excise, use, VAT, GST/HST, or other taxes measured by the sales price. Shipping fees are itemized and billed to Customer at then applicable rates. Customer shall pay all costs of transportation, FCA IDT's facility. Customer represents and warrants that Customer shall not transfer, directly or indirectly, any Products to any person whatsoever if to do so would be inconsistent with (a) any export or reexport law, regulation, or other control; (b) any trade or economic sanctions law, regulation, or other control, whether relating to any person, to an organization or group, or to a country; or (c) any applicable export or trade licensing law, regulation, or requirement, any of which are imposed by or derivative of the law of the United States of America, Belgium, the European Community or European Union, Singapore, or of any other country, supranational entity, or legal authority exercising jurisdiction where Customer operates or does business.
3. Payment. All payments shall be in the currency indicated on IDT’s invoice. Terms of sale are net 30 days of the date of invoice, unless otherwise agreed in writing by IDT prior to order acceptance.
4. Inspection. Customer shall promptly inspect the Products upon receipt. Customer shall accept any tender of Products by IDT substantially in conformity with terms of the Purchase Order. Customer's acceptance will be conclusively presumed if Customer fails to give IDT written notice of rejection within 10 days after receipt of the Products. Any such notice shall describe the rejected Products and the reasons upon which rejection is based.
5. 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 IDT or under which IDT 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. IDT does not warrant that the use or sale of the Products will not infringe the claims of United States or other patents covering the Products themselves or the use thereof in combination with other products or in the operation of any process. Customer agrees to indemnify and hold IDT 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 IDT by the Customer.
6. Disclaimer and Limitation of Warranties; Limitation of Remedies.
6.1. Limited Warranty and Disclaimer of Other Express or Implied Warranties. IDT warrants that the Products shall conform to the description of such Products as provided to Customer by IDT in the Certificate of Analysis and Oligo Master Record. IDT 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. IDT's warranty made with this sale shall not be effective if IDT 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 IDT.
6.2. Limitation of Damages. IDT 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 IDT 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 IDT'S GROSS NEGLIGENCE. IN NO EVENT SHALL IDT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND, DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO A DELAY, WHETHER ACTUAL OR ALLEGED, IN THE DELIVERY TO CUSTOMER OF PRODUCTS ORDERED FROM IDT.
6.3. Limitation of Remedies for Defective Products. Any claim by Customer on account of breach of warranty must be in writing and received by IDT within 30 days after Customer's receipt of Products. CUSTOMER'S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE LIMITED TO IDT'S CHOICE OF: (a) the repair or replacement of defective Products with conforming Products at the FCA point provided herein; or (b) the refund of the purchase price received by IDT for the defective products. IDT shall be given reasonable opportunity to investigate all warranty claims and to inspect allegedly defective Products.
6.4 No Design Input. The Parties hereto acknowledge that Customer, and not IDT, has designed and developed all Products for their use or potential use in clinical or diagnostic applications. The Parties further acknowledge that IDT did not engage or otherwise contribute to, or participate in, any of the following acts of product design or development: (i) target and/or analyte sequence selection, including oligonucleotide sequence design and selection; (ii) assay design and optimization, (iii) clinical trial design, implementation, or reporting, (iv) the establishment of any clinical testing procedure or standard, (v) the performance of any false positive or false negative risk analysis or mitigation, (vi) the establishment of any product labeling requirements, or (vii) the performance of any other act that is in any way related to the design of the clinical product or service in which the Products are or may be used, hereafter collectively (“Product Design”). Customer acknowledges that IDT’s obligations and responsibilities with respect to the clinical performance of Products are expressly limited to IDT manufacturing Products in compliance in all material respects with the specifications and Oligo Master Record referred to herein, and all laws, rules, and regulations applicable to the manufacture and shipment of Products.
7. Customer Indemnity. CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD IDT HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS BY ANY THIRD PARTY 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, OR HAVING ANY RELATIONSHIP TO “PRODUCT DESIGN”.
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