Buyer and Sexton Biotechnologies (“Seller”) acknowledge and agree that the terms and conditions of these Sexton Terms and Conditions of Sale (“Terms”) shall control over any inconsistent terms or conditions contained in any purchase order (“PO”) issued by the Buyer. Seller hereby gives notice of its objection to any terms or conditions in the PO which are inconsistent with these Terms. These Terms set forth the only terms and conditions under which Seller will sell products and related materials (“Products”) to Buyer notwithstanding any conflicting term or condition contained in any PO, request for proposal, electronic communication (including but not limited to email, facsimile, web-based order or electronic data interchange (“EDI”) system) or any other form submitted by Buyer (collectively “Order”). Buyer must notify Seller of its objections to any of the terms and conditions of these Terms within fifteen (15) calendar days of receipt of these Terms. If Buyer so objects, Seller’s acknowledgment and these Terms shall not operate as an acceptance or confirmation of any such order.
- Inspection, Testing.
Products are subject to Buyer’s reasonable inspection at Buyer’s destination. Buyer shall inspect Products at the time of delivery and accept or reject Products within fifteen (15) calendar days after the date of delivery. In the event the Buyer, after such inspection, rejects Products, Buyer shall have the right, at Seller’s option, to return damaged Products for credit or replacement. Any claim(s) arising from any alleged defect in the quality or quantity of Products or any alleged shortages, or any failure in shipment or delivery are waived and released by Buyer unless notice of such claims is made in writing to Seller within fifteen (15) calendar days from the date of delivery. All claims must set forth in detail the alleged basis for rejection. In the absence of such written notice, Buyer shall be deemed to have accepted Products and no claim for rejection shall be effective. Seller shall not accept any return of Products except in the case of a manufacturing or processing error by Seller relating thereto (“Seller Error Products”) or ordering error of Buyer relating thereto (“Buyer Error Products”). Buyer Error Products are subject to a reprocessing charge of up to 25% of the original price of Products. Credit or replacement, at the option of Seller, shall be given to Buyer for returned Seller Error Products.
- Product Returns.
Except as set forth herein, Seller may accept return of any stock catalog item within thirty (30) days from invoice date of original order shipment. Because of the many variations within the product line, Seller reserves the right to designate stock catalog items. Seller will not accept return of non-stock, special order or temperature sensitive items as determined by Seller. Returned products must be received undamaged, properly packaged for shipping, and must not have been opened, used, or re-sterilized. All returned products must be received by Seller in a saleable condition, and all items, sterile or non-sterile, must not have been held more than thirty (30) days by the Buyer.
Requests for return of products must be made by telephone (317-650-9679) or email (firstname.lastname@example.org). Requests must specify the reason for the return (e.g. ordering error, shipping error), catalog order number and quantity, lot number and invoice number with date of invoice. Returned products must be accompanied by the original order invoice, packing slip or facsimile. Returned items are subject to a restocking charge of up to 25% of the original item cost. Full credit will be given to the customer for an item returned due to a processing error by Seller. No credit will be given for an item returned in a condition that is unsuitable for restocking as determined by Seller.
- Limited Warranty.
Seller warrants only that, at the time of manufacture, the Products sold to Buyer (i) are true to label; (ii) conform to specifications; (iii) are free from defects in materials and workmanship; and (iv) are not adulterated or misbranded within the meaning of the Federal, Food, Drug and Cosmetic Act as amended. Seller does not warrant either a good effect or against any ill effect following Products’ use. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF AND SHALL SUPERSEDE ALL OTHER WARRANTIES OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF NONINFRINGEMENT. No representative of Seller may change any of the foregoing and Buyer accepts Products subject to all terms hereof. Seller makes no warranties that the Products are effective under all circumstances.
- Limitation of Remedies and Damages.
Buyer’s sole and exclusive remedy for any claim arising by reason of or in connection with the sale, purchase, delivery or use of Products, regardless of whether such claim is based on tort law, breach of contract, breach of warranty or any other legal theory (“Claim”) shall be, at Seller’s option, the repair or replacement of any nonconforming Products. Buyer’s exclusive remedy for any breach of the Agreement or the limited warranty set forth in Section 3 of these Terms (“Breach”) is repair or replacement, at Seller’s option, of any nonconforming Products. Under no circumstances shall Seller be liable for loss of use, lost profits or any other collateral, special, consequential or other damages, losses, or expenses in connection with or by reason of any Claim or Breach, whether such Claim or Breach is founded in tort or contract. The foregoing constitutes the sole and exclusive remedies of Buyer and the exclusive liability of Seller.
- Indemnification. Part A.
(a) Subject to Section 4 of these Terms, Seller agrees to indemnify, defend and hold harmless Buyer from any and all liabilities, claims, lawsuits, actions, proceedings, losses, demands, damages, costs and expenses (including, without limitation, interest, penalties and reasonable attorneys’ fees) and judgments (collectively “Action”) arising out of bodily injury, property damage or any other damage or injury caused solely and exclusively by a breach of Seller’s warranty specified herein and without fault by Buyer or any agent, employee, representative or customer of Buyer or any health care provider associated or affiliated with Buyer.
(b) Buyer agrees to indemnify and hold harmless Seller (and any parent, subsidiary or affiliate company or corporation), their directors, officers, employees, agents and insurers from any and all Actions arising out of, or resulting from, or otherwise related to bodily injury, property damage or any other damage or injury caused in whole or in any part by (i) any fault, negligence, intentional misconduct, or malpractice of Buyer or any health care provider associated or affiliated with Buyer, including, but not limited to, the failure of Buyer or such health care provider to perform its obligations hereunder; or (ii) actions by Buyer or any health care provider associated with or affiliated with Buyer in violation of any applicable law or regulation (“Buyer Indemnification Event”). In the case of a Buyer Indemnification Event, Buyer shall permit Seller to retain counsel of its choosing and shall allow Seller to retain exclusive control of such Action, including without limitation the right to make any settlement. Buyer shall cooperate fully with Seller in defending such Action.
Buyer shall be responsible for all shipping and handling charges and taxes. Shipping and handling, sales tax, use tax, excise tax, value added tax (VAT), duty, customs, inspection or testing fee, not subject to exemption, shall be stated separately in Seller’s invoice to Buyer if applicable. Except as specifically set forth on Seller’s quotation, prices are subject to change without notice and any Order calling for future delivery shall be billed according to the price in effect at the time of delivery. It is Buyer’s responsibility to provide proof of any tax-exempt status to which Buyer is entitled.
- Payment Terms.
Full payment without setoff shall be due to Seller from Buyer within thirty (30) days following delivery of Product(s) to Buyer or receipt of invoice by Buyer, whichever date is later. Buyer shall pay to Seller interest on all amounts past due at the rate of one and a half percent (1.5%) per month until payment in full has been made. Buyer shall pay Seller for all Products that are delivered as to which there is no dispute regardless of whether a dispute exists as to any other Product. In the event that Seller is required to file a lawsuit in order to collect any payment due to Seller from Buyer, Seller shall be entitled to recover, in addition to its actual damages, the costs and expenses of recovery, including reasonable attorneys’ fees and expenses.
- Shipping Terms.
For U.S. domestic shipments, all Products shall be shipped FOB Seller’s facility (UCC Article 2) and placed on the vehicle selected and engaged by Buyer. For shipments outside of the U.S., all Products shall be shipped Ex Works Seller’s facility (Incoterms® 2010), and Buyer shall provide Seller with details of its shipping account with the carrier selected by Buyer. As long as there is a sufficient quantity of Product in Seller’s inventory, Product shall be made ready for pick-up by Buyer’s carrier within one (10) business day of order confirmation. Non-stock, special order items or items not in inventory will be made ready for pick-up by Buyer’s carrier when available, upon notice to Buyer or its agent. Title to the Products shall pass from Seller to Buyer at the time risk of loss transfers in accordance with the applicable delivery term, but in no event other than within the U.S.
- Force Majeure.
Seller shall acknowledge each Order and confirm shipping dates. Seller shall not be responsible for any delays arising, directly or indirectly, from strikes, labor difficulties, riots, civil unrest, war, fire, collapse, floods, delay or defaults of common carriers, failure or curtailment of Seller’s usual source of supply, governmental decrees and orders, or without limiting the foregoing, any other delay beyond Seller’s control; provided, however, that Seller shall use reasonable efforts to notify Buyer of anticipated delays and to fill such orders as soon as reasonably possible.
- Use Restrictions.
Buyer shall be prohibited from altering or modifying the Products in any manner or promoting the Products for any non-indicated or off-label use in any manner, and Buyer shall be prohibited from authorizing or permitting any other party to alter or modify the Products in any manner or promoting the Products for any non-indicated or off-label use in any manner. Buyer may not remove or modify any proprietary marking or any labeling on the Products.
- Export Controls.
Regardless of any disclosure made by Buyer to Seller of an ultimate destination of the Products, Buyer covenants that it will not export or re-export, either directly or indirectly, any of the Products in violation of U.S. export control or economic trade sanctions laws, including but not limited to the Export Control Reform Act of 2018 (50 U.S.C. §§ 4801-4852), the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.), the International Emergency Economic Powers Act (50 U.S.C. §§ 1701-1707), and any regulations, orders or rules issued pursuant thereto (collectively, “U.S. Export Controls”) and will obtain any and all licenses and approvals required for export or re-export of the Products under U.S. Export Controls. Buyer further agrees to indemnify and hold harmless Seller from any claims, losses or expenses arising from Buyer’s violation of U.S. Export Controls.