Terms and Conditions
These Terms and Conditions for use (“Agreement”) exclusively govern the supply of Materials by Biomatrica, Inc. and its subsidiaries (“Biomatrica”). Please be informed that by accepting the Material, Customer agrees to the following terms and conditions for use:
1. Definition. “Product” means any hardware or consumables sold or Software licensed under this Agreement. “Software” means one or more computer programs and related documentation. “Service” means any standard support service to support Products, custom stabilization services agreed by Parties, Software updates and maintenance, or training. Products, Software and Services shown in Biomatrica’s quotation and/or in the materials supplied to you (“Customer”) contain proprietary Materials based on Biomatrica’s technology (“Material”). Customer and Biomatrica are referred to hereinafter as “Party” and together as the “Parties.”
Price and Payment. The price for the provision Materials is set forth in the applicable quotation ("Price"). In addition to the Price, the Customer shall pay for Biomatrica’s actual out-of-pocket travel expenses incurred in providing the Services, provided that Biomatrica shall obtain Customer’s approval prior to incurring any single expense that exceeds $1,000 in US dollars. All prices are exclusive of shipping and insurance charges, all of which are Customer’s sole responsibility. All prices and other amounts payable to Biomatrica under this Agreement are exclusive of and are payable without deduction for all sales, use, excise, value added, withholding and other taxes, customs duties, tariffs or charges now or hereafter claimed or imposed by any governmental authority upon the sale of the System, Components or Consumables, all of which will be paid by Customer. In the event Biomatrica is required to pay any such tax, duty or charge, such amount will be added to the purchase price or subsequently invoiced to the Customer. Prices are subject to revision due to interruptions, engineering changes or changes in quality caused or requested by Customer. Biomatrica will determine payment terms on a per-order basis and such terms are subject to a credit review by Biomatrica. Unless otherwise authorized in writing by Biomatrica, the Final Investment price shall be made in full by the Customer within thirty (30) days from the date of the invoice. Invoices will be issued by Biomatrica upon shipment of the goods provided hereunder. Any amounts not paid when due will accrue interest at the rate of one and one half percent (1.5%) per month, or the maximum amount allowed by law, if lower. In the event that any payment is more than thirty (30) days late, Biomatrica shall have the right to suspend performance, including shipment, until all payments are made current. Customer shall pay for all costs (including reasonable attorneys’ fees) incurred by Biomatrica in connection with the collection of late payments. The amount of credit may be changed or credit withdrawn by Biomatrica at any time. Each accepted purchase order is a separate, independent transaction, and Customer has no right of set-off against other purchase orders or other transactions with Biomatrica.
a. Customer shall pay the Price to Biomatrica.
b. Biomatrica shall invoice the Customer for Materials as described in the Price. Each invoice shall set out the Materials supplied and the applicable total Price due.
c. Unless other payment terms are set forth in the applicable Price, the Customer shall pay such invoices within 21 days of their receipt from Biomatrica.
d. The method of payment of the Price by the Customer to Biomatrica shall be by:
i. check sent to the following address: 5627 Oberlin Drive, Suite 120, San Diego, CA 92121
ii. credit card payment
e. Any charges payable under this Agreement are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the Services by Biomatrica to the Customer under this Agreement and such shall be payable by the Customer to Biomatrica in addition to all other charges payable hereunder.
f. Any amounts not paid by Customer to Biomatrica when due will accrue interest at the rate of two percent (2%) per month, or the maximum amount allowed by law, if lower. In the event that any payment is more than thirty (30) days late, Biomatrica shall have the right to suspend Materials until all payments are made current. Customer shall pay for all costs (including reasonable attorneys’ fees) incurred by Biomatrica in connection with the collection of late payments. The amount of credit may be changed or credit withdrawn by Biomatrica at any time. Customer has no right of set-off against any other transaction with or amounts due to Biomatrica, whether under this Agreement or otherwise.
2. Title. All sales are FOB Origin, and title to and the risk of loss or damage of Materials shall pass to Customer at the time of Biomatrica’s delivery of such Materials to the carrier. The carrier shall be deemed Customer’s agent, and any claims for damages in shipment must be filed with the carrier. Biomatrica is authorized to designate a carrier pursuant to Biomatrica’s standard shipping practices unless otherwise specified in writing by Customer.
3. Intellectual Property Rights: All right, title and interest in and to all patent rights, copyrights, trade secrets, know-how, trademark, service mark and trade dress rights and any other intellectual property rights, current or future, under the laws of any jurisdiction, together with all applications therefor and registrations thereto arising or related to the Materials, and any improved, updated, modified or additional parts thereof, shall at all times remain the property of Biomatrica or Biomatrica’s licensors, as the case may be. If the use of the Materials results in an invention or discovery by Customer, whether alone or in conjunction with Biomatrica, or other commercially useful result, including without limitation a new use, improvement or enhancement of the Materials whether patentable or not, (an “Invention”) then Biomatrica shall own all right, title and interest to such Invention and in any patent, copyright or other intellectual property right in and to such Invention. As additional consideration for the provision of Materials by Biomatrica, Customer hereby assigns and transfers to Biomatrica, from the moment of creation, all of Customer’s right, title, or interest in any Invention hereunder or otherwise and in any patent, copyright or other intellectual property right in and to such Invention. Customer shall promptly disclose all Inventions to Biomatrica in writing and shall not use the data or results obtained as a result of the Materials \to support any patent application to the extent that such use would disclose any Invention, without Biomatrica’s prior written consent. Customer shall not analyze, characterize, reverse engineer, decompile or determine the structure, formulation or amino acid or nucleic acid sequence, or otherwise attempt to gain unauthorized access to any Material transferred herein. Customer shall not modify Material in any way. Customer shall not challenge, contest or otherwise impair Biomatrica’s ownership of the Materials, and Inventions or the validity or enforceability of Biomatrica’s intellectual property rights related thereto. The Customer agrees that Biomatrica has the right to provide services to other third parties, and nothing in this Agreement shall be interpreted to limit Biomatrica’s rights to use the Materials, and Inventions with respect to any such other engagements.
4. Results: Customer will inform Biomatrica, and when so requested, of results related to the Material.
5. License: No implied license, right or obligation is granted to Customer, directly or indirectly, with respect to any Material or under any patent, trade secret, or other right of Biomatrica. Customer agrees that nothing herein shall be deemed to grant to Customer any rights under any intellectual property rights of Biomatrica.
6. Material Characteristics: Customer acknowledges that the Material may be experimental in nature and may have unknown characteristics and therefore agrees to use prudence and reasonable care in the use, handling, storage, transportation and disposition and containment of the Material. In no event shall the Material be introduced into humans.
7. RUO: Customer acknowledges that Materials are for research use only. Customer may only use the Materials as agreed by Biomatrica. The Materials may not be used for any other purpose, including without limitation for any commercial purpose unless agreed in writing by Biomatrica. Customer agrees to retain control over the Materials and not to transfer the Materials to any third person or entity without the prior written approval of Biomatrica. Biomatrica may provide to interested third party information about Biomatrica’s custom services and overall performance of services provided to other parties and, as provided below.
8. Publicity. Customer agrees that Biomatrica may publicly identify Customer as a user of its Materials. Except as expressly provided herein, Customer agrees not to disclose any financial terms of this Agreement to any third party without the consent of Biomatrica, except as is required by securities or other applicable laws, in which case Customer shall in a timely matter notify Biomatrica.
9. Limitation of liability: NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL BIOMATRICA, ITS SUBCONTRACTORS OR SUPPLIERS BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
a. Subject to the Customer’s obligation to Biomatrica, either Party’s liability in contract, tort or otherwise (including negligence) arising directly out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement and every applicable part of it shall be limited in aggregate to the Price paid for the specific Material giving rise to the dispute.
b. Nothing in this Clause 9 will serve to limit or exclude either Party’s liability for death or personal injury arising from its own gross negligence or willful misconduct.
10. Warranty: Biomatrica represents and warrants that:
a. Biomatrica will supply Materials, if commercially available, in a workmanlike manner and consistent with industry practice; and
b. To the best of Biomatrica’s knowledge, the Materials supplied by Biomatrica to the Customer under this Agreement will not infringe or violate any intellectual property rights or other right of any third party.
c. Notwithstanding anything herein to the contrary, Biomatrica makes no warranty with respect to any third-party goods provided under this Agreement. Customer’s sole remedy with respect to such third-party goods shall be pursuant to the original manufacturer’s or licensor’s warranty, if any, to Customer, to the extent permitted by the original manufacturer or licensor. MATERIALS TO BE PROVIDED PURSUANT HERETO SHALL BE SUPPLIED TO CUSTOMER “AS IS,” WITH NO WARRANTIES, EXPRESS OR IMPLIED, AND BIOMATRICA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE FOREGOING, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR BASED ON COURSE OF CONDUCT OR TRADE CUSTOM OR USAGE.
11. Term and Termination: This Agreement shall continue in effect until terminated as provided in this Agreement.
a. Either Party may terminate this Agreement upon notice in writing if:
i. the other is in breach of any material obligation contained in this Agreement, which is not cured (if the same is capable of being cured) within 30 days of written notice from the other Party so to do; or
ii. a voluntary arrangement is approved, a bankruptcy or an administration order is made or a receiver or administrative receiver is appointed over any of the other Party's assets or an undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either party or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order in respect of the other Party.
b. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. All rights and remedies conferred herein shall be cumulative and in addition to all of the rights and remedies available to each Party at law, equity or otherwise.
12. Force Majeure. Biomatrica shall not be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, fire, flood, tornado, earthquake, hurricane, lightning, government actions, actual or threatened acts of war, acts of terror, civil commotion, disturbance or insurrection, sabotage, industrial dispute, labor shortages or disputes, failure or delay in delivery by Biomatrica’s suppliers or subcontractors, transportation difficulties, shortage of energy, raw materials or equipment, or Customer’s fault or negligence. In the event of any such delay the delivery date shall be deferred for a period equal to the time lost by reason of the delay.
13. Relationship of the Parties: The Customer acknowledges and agrees that the Materials provided by Biomatrica, its employees, agents or sub-contractors shall be as an independent contractor. Nothing in this Agreement shall be construed as establishing any joint venture or other business relationship or as granting any license or right under any patent rights or as representing any commitment by Biomatrica to enter into any license or other agreement by implication or otherwise.
14. Notices: Any notice which may be given by a Party under this Agreement shall be deemed to have been duly delivered if delivered by hand, first class post, facsimile transmission or electronic mail to the designated address of the other Party as specified in this Agreement or any other address notified in writing to the other Party. Subject to any applicable local law provisions to the contrary, any such communication shall be deemed to have been made to the other Party, if delivered by:
a. First class post, 2 days from the date of posting;
b. Hand or by facsimile transmission, on the date of such delivery or transmission; and
c. Electronic mail to a designated address provided by Receiving Party, when the Party sending such communication receives confirmation of such delivery by electronic mail.
i. Designated email address for Biomatrica is mmunson@biomatrica.com and jmullercohn@biomatrica.com
ii. Designated email address provided by Customer.
15. Miscellaneous
a. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
b. If any part, term or provision of this Agreement is held to be illegal or unenforceable neither the validity or enforceability of the remainder of this Agreement shall be affected.
c. Customer shall not assign or transfer all or any part of its rights under this Agreement without the prior written consent of Biomatrica; Biomatrica may assign this Agreement to an entity that acquires all or substantially all of Biomatrica's assets or business to which this Agreement relates.
d. This Agreement may not be amended for any other reason without the prior written agreement of Biomatrica.
e. This Agreement shall exclusively govern the supply of Materials hereunder and contains the entire agreement between the parties with respect to the subject matter contained herein and supersedes any previous understandings, representations, writings, negotiations commitments or agreements, oral or written with respect thereto which are hereby rejected and shall be null and void. Biomatrica’s failure to object to any such terms shall not constitute a waiver by Biomatrica, nor constitute acceptance by Biomatrica of such terms and conditions. All orders or contracts for the Materials must be approved and accepted by Biomatrica in writing. NO TERM OR CONDITION SET FORTH IN ANY OF CUSTOMER’S SOLICITATIONS, RFPs OR PURCHASE ORDERS SHALL BECOME PART OF ANY MATERIAL OR OTHERWISE BECOME BINDING ON BIOMATRICA UNLESS EXPRESSLY AGREED TO IN WRITING BY BIOMATRICA. ANY CUSTOMER ORDER IS ACCEPTED SOLELY ON THE CONDITION THAT CUSTOMER EXPRESSLY ACCEPTS AND ASSENTS TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
f. This Clause 15 (miscellaneous) and Clauses 1 (definitions), 2 (price and payment), 3 (title), 4 (intellectual property rights), 5 (license), 10 (limitation of liability), 11 (warranty), 12 (term and termination), 14 (relationship of parties) 15 (notices) and all payment obligations incurred during the term of this Agreement, shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the parties under this Agreement shall cease upon termination or expiration of this Agreement.
g. This Agreement shall be governed by and construed under California law, without application of its conflicts or choice of law rules. Customer and Biomatrica irrevocably submit to the exclusive jurisdiction of the state and federal courts located in San Diego, California for any action or proceeding regarding this Agreement, and Customer irrevocably waive any right to object to the exclusive jurisdiction or venue of the courts in San Diego, California.
h. This Agreement may be executed in several counterparts that together shall be originals and constitute one and the same instrument.
i. In the event a dispute arises regarding this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, in addition to other relief to which it is entitled.
