Molecular Lock Corporation

Molecular Lock Corporation - Terms of Use

Effective: Jan 26, 2010

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Introduction
Inspection and Returns
Governing Provisions
Payments
Taxes and Other Charges
Warranty; Limitation on Liability
Compliance with Laws and Regulations; Intellectual Property Rights
Authorized Uses
Indemnity
Technical Assistance
Improvements; Intellectual Property
Arbitration
Non-Waiver, Invalidity
Non-Waiver, Assignment
Waiver
Miscellaneous

Introduction

These General Terms of Use (the “Terms”) shall govern all orders for and purchases of products from Molecular Lock Corporation (“MLC”). In these Terms, “we,” “us,” and “our” means MLC, and “you” and “your” means the person, company or other legal entity that orders or buys goods from us and in each case their respective successors and/or assigns. You expressly warrant that neither you, the purchaser, nor anyone that will be using these purchased goods is under eighteen (18) years old. We are shipping these goods subject to these Terms and our offer to sell goods is expressly conditioned upon your acceptance of such Terms. You will be deemed to have assented to these Terms unless you return the goods to us unopened and unused in accordance with the following conditions:

Upon your receipt of goods shipped hereunder, you shall inspect the goods and notify our Customer Services Department of any claims for visible shortages, defects or damages. Should you fail to notify us of any such visible shortages, defects or damages within ten (10) days after you receive the goods, the goods shall conclusively be deemed to conform to these Terms and to have been irrevocably accepted by you. Authorization for all product returns must be approved by our Customer Services Department and a return authorization number given to you prior to the return of goods. Items authorized for return must arrive at our facilities in a state satisfactory for resale to be eligible for product credit. A restocking charge of twenty five percent (25%) shall be charged on returns that are not the result of any error or fault of ours. Reagents may only be returned when (i) such goods are delivered in a damaged condition; (ii) such goods are obviously defective; or (iii) we have delivered an over-shipment of such goods. Shipping charges will not be credited. Goods may not be returned for credit after ten (10) days after your receipt of the goods. At our discretion, we may issue a product credit or refund for the product value and shipping charges; however, any product credit not used within six (6) months of the date of issue shall expire and no product credit shall be available for use if a past due balance is outstanding on the account.

Our failure to object to provisions contained in any purchase order or other form or document from you shall neither be construed as a waiver of these Terms nor an acceptance of any such provision. These Terms, including all writings incorporated herein by reference, any licenses, any quotation issued to you by us, and those specific terms of a purchase order or other document that are either consistent with these Terms or expressly agreed upon by us in writing, constitute the entire contract between us relating to the subject matter hereof (the “Contract”), and supersede all prior agreements and understandings between us, whether written or oral, and any of your additional or different terms and conditions, which are hereby rejected and shall be void. In the event of a conflict, a quotation takes precedence over these Terms, and a written contract covering the same subject matter signed by both of us takes precedence over either. If one or more of these Terms are held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining Terms shall be unimpaired.

Terms of payment are the amount of invoice, in U.S. Dollars. It is your responsibility to verify all information, including price, set forth in the Order Confirmation, and to contact customer service prior to shipment if any information is incorrect. We reserve the right to correct any misstated price in the Order Confirmation or any price containing a discount for which you have not qualified, at any time before shipping, by notifying you. In such event, you may cancel such order.

Any use tax, sales tax, excise tax, duty, inspection or testing fee, or any other tax, fee or charge imposed by any governmental authority, on or measured by the transaction between us shall be paid by you in addition to the prices quoted or invoiced. If we are required to pay any such tax, fee or charge, you shall reimburse us therefore or provide us at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.

Unless otherwise set forth in a warranty statement found in our current product documentation or in a specific written warranty accompanying the goods, in which case such language shall govern and control over conflicting language in these Terms, we warrant to you, our direct customer, that our goods shall conform substantially to the description of such goods as provided on our website, www.molecularlock.com (“MLC Web Site”). THIS WARRANTY IS EXCLUSIVE, AND WE MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IF WE MANUFACTURE CUSTOM GOODS FOR YOU BASED ON INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS YOU PROVIDE TO US, WE SHALL NOT BE LIABLE FOR THE LACK OF SUFFICIENCY, FITNESS FOR PURPOSE OR QUALITY OF THE GOODS TO THE EXTENT ATTRIBUTABLE TO SUCH INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS. Unless otherwise expressly stated in our quotation, we make no warranty whatsoever in regard to products furnished by third parties. Such products are subject to the warranties, if any, of their respective manufacturers to the extent they are transferable or otherwise available to our customers. Our warranty shall not be effective if we determine, in our sole discretion, that you have altered or misused the goods or have failed to use or store them in accordance with instructions furnished by us or the defects to the goods result from neglect or accident. Our sole and exclusive liability and your exclusive remedy with respect to goods proved to our satisfaction (applying analytical methods reasonably selected by us) to be defective or nonconforming shall be the replacement of such goods free of charge, upon the return of such goods in accordance with our instructions, although at our discretion we may provide a credit or refund in accordance with the return policy above. ANY PRODUCT NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL WE BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. We shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond our reasonable control.

We certify that, to the best of our knowledge, our goods are produced in compliance with all applicable federal, state, and local statutes, rules, regulations, ordinances, and orders. We warrant to you that the manufacture and sale by us of goods manufactured by or for us without reliance upon instructions, specifications, or other directions provided by you and delivered hereunder, to our knowledge will not infringe the claims of any patent, trademark or copyright (“Intellectual Property”) of any third party, and if goods do infringe Intellectual Property rights of such third party then your sole and exclusive remedies with respect to any breach of this warranty are set forth as follows:

If any claim is made against you or us for infringement of Intellectual Property rights of any third party arising directly and solely from the manufacture or sale of goods by us in circumstances in which the manufacture of such goods was not based upon instructions, specifications, or other directions provided by you, we shall assume the defense of any ensuing litigation and conduct all negotiations for settlement of such claims and will bear the costs of any payment made in settlement or resulting from an award; provided that you shall give us notice in writing as early as is reasonably practicable of any such claim being made or action threatened or brought against you, shall make no admission of liability or take any other action in connection with such matter and shall permit us to defend such claim and shall (at our expense) give all reasonable information, co-operation and assistance to us (including without limitation lending your name to proceedings) in relation thereto. You shall assign to us all rights and claims to any awards or compensation arising therefrom.

Without limiting the foregoing, if goods are subject to a suit or other legal proceeding claiming that the goods infringe Intellectual Property of such third party, or in our opinion are likely to become subject of such a claim, we shall, at our option, have the right to either: (a) procure for you the right to continue using the goods; (b) substitute for the alleged infringing goods other suitable, non-infringing goods with comparable functionality; or (c) require you to return the goods and upon return, refund to you the price you paid for the goods actually returned. The foregoing describes our entire liability to you and your exclusive remedies against us in connection with claims made against you based on or resulting from such infringement of Intellectual Property rights of third parties.

Nothing in these Terms shall be deemed or construed: (i) as a license or grant of any Intellectual Property, whether implied, by estoppel or otherwise except to the extent expressly granted under any applicable intended use statement, limited use statement or limited label license; (ii) to limit our rights to enforce our Intellectual Property, including, without limitation, as to use of any goods beyond that granted under any Intellectual Property label license or statement applicable to the goods; (iii) as granting you any right to be supplied with goods or component thereof beyond those ordered by you and supplied by us in accordance with these Terms; or (iv) as a license or grant of any right to you to manufacture or to have manufactured the goods.

By submitting an order, you represent, warrant, and agree that the Molecular Lock reagents and components thereof sold to you shall be for your own internal research and development use only and shall not be resold or otherwise transferred or conveyed to any third party without our prior express written consent. Except as otherwise agreed in writing by our authorized representative, the purchase of goods only conveys to you the non-transferable right for only you to use the quantity of goods and components of goods purchased in compliance with the applicable intended use statement, limited use statement or limited label license, if any, in our catalogues or on the label or other documentation accompanying the goods (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety). Unless otherwise authorized, no right to resell the goods, or any portion of them, is conveyed hereunder. Unless otherwise expressly indicated in our catalogues or on the label or other documentation accompanying the goods, the goods are intended for research use only and are not to be used for any other purposes including, but not limited to, unauthorized commercial purposes, in vitro diagnostic purposes, ex vivo or in vivo therapeutic purposes, investigational use, in foods, drugs, devices or cosmetics of any kind, or for consumption by or use in connection with or administration or application to humans or animals. You acknowledge that the goods have not been tested by or for us for safety or efficacy, unless expressly stated in our catalogues or on the label or other documentation accompanying the goods. You explicitly represent that you will not:

transfer any reagents sold to you to a third party;
use the reagents at any institution other than the purchasing company;
use the reagents at any site other than the specified site of the purchasing company;
duplicate any reagent sold to you by MLC; or
use any reagent sold to you by MLC for any purpose other than scientific or biomedical research.

For clarity, you represent and warrant to us that you will properly use any goods purchased from us: in accordance with the practices of a reasonable person who is an expert in the field (including, but not limited to, a technically qualified individual) and in strict compliance with all applicable national, state, provincial, and local food, drug, device, and cosmetic and other relevant laws and regulations, now and hereinafter enacted. You realize that, because our goods are intended for research purposes only, they may not be on the Toxic Substances Control Act (TSCA) inventory. You assume responsibility to ensure that the goods purchased from us are approved for use under TSCA, if applicable. Consistent with your agreement to comply with all TSCA R&D substance exemption requirements applicable to the purchase, you agree and warrant that you will comply with all requirements necessary to maintain the R&D exemption, including using the R&D substance under the supervision of a technically qualified individual, maintaining all necessary labeling, and providing all necessary notifications. You also agree and warrant that you will use the R&D substance exclusively for R&D purposes and not transfer this material to any other third party. You specifically agree and warrant that you will not sell or distribute the R&D substance to consumers or transfer outside of the purchasing company’s site. You have the responsibility to conduct any research necessary to learn the hazards involved for any of your uses of goods purchased from us and to warn your customers, employees and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the goods. You agree to comply with instructions for use of the goods furnished by us, if any, and not to misuse the goods. If the goods purchased from us are to be repackaged, relabeled or used as starting materials or components of other products, you will verify our assay of the goods, qualify the goods provided by us for such applications, and comply with all governmental requirements relating to labeling or providing other communications to your users. You acknowledge that we provide Material Safety Data Sheets (MSDS) for our products, and that they are available electronically on our web site at www.molecularlock.com, or in paper copy by calling us on the contact phone number provided by the MLC Web Site, and that you are willing and able to access MSDS by these means. You also agree to inform your employees of the risks, if any, involved in using or handling the goods and to train and equip them to handle the goods safely. You acknowledge that products received from us are subject to U.S. export control laws and regulations. You represent and warrant to us that you will not, directly or indirectly, (a) sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from us to any destination, entity, or person prohibited by the laws or regulations of the United States, or (b) use the product for any use prohibited by the laws or regulations of the United States and/or your local jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. In any publications reporting use of the goods, you agree to: (a) acknowledge Molecular Lock Corporation as the source of goods, and (b) acknowledge any patent or trademark information shipped with the goods.

You shall, at your own expense, indemnify us, defend us and hold us harmless from and against any and all losses, damages and expenses (including reasonable attorneys’ fees and other costs of defending any action) that we may incur as a result of any claim of negligence, breach of implied warranty, strict liability in tort, or other theory of law, by you, your officers, agents or employees, your successors and assigns, and your customers, whether direct or indirect, in connection with the use, misuse or resale of any goods sold pursuant hereto either as a standalone product or a component part or raw material of another product, or by reason of your breach of or failure to perform any of your obligations hereunder. You shall notify us promptly of any incident involving goods sold pursuant hereto resulting in personal injury or damage to property, and you shall fully cooperate with us in the investigation of such incident and provide us with all related statements, reports and tests available to you.

Unless otherwise agreed, all technical assistance and information we provide to you regarding the goods will be provided gratis, and you assume sole responsibility for results obtained in reliance thereon. We make no warranty regarding the availability or merchantability of such technical assistance or information.

Any inventions (patentable or otherwise), discoveries, developments, improvements, information, data, compounds, formulae, know-how or other results that are conceived, developed, discovered, reduced to practice, or generated by you, or by us and you, that relate or apply to the processes and methods used in or related to the use of Molecular Lock reagents, products or otherwise in connection with designing or manufacturing Molecular Lock reagents shall be and remain our sole and exclusive intellectual property, and you hereby transfer and assign all of your right, title and interest to any such joint intellectual property to us. You will take reasonable steps, upon our request and at our expense, to assist us to secure, evidence, and record our rights in such intellectual property.

Any controversy or claim arising out of or relating to (a) this agreement or the breach thereof, (b) the purchase of reagents by you, or (c) the use of reagents by you, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its applicable Commercial Arbitration Rules (or, if you are a non-U.S. entity, its International Arbitration Rules) and Patent Arbitration Rules then existing. Any controversy or claim shall be governed by the laws of the state of Delaware, as such law applies to contracts entered into in Delaware by residents of Delaware and the patent laws of the United States without reference to any rules of conflict of laws or renvoi and excluding in all cases choice of law provisions and the United Nations Convention on Contracts for the International Sale of Goods. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law of the State of Delaware without reference to choice of law doctrine and the award rendered by the arbitrator. The modification of the award as provided hereunder, shall be final and binding on you and MLC, and the judgement may be entered thereon in any court having jurisdiction thereof. The arbitration shall be held in a location designated by MLC. If you desire to arbitrate a matter, you shall notify MLC in writing of your desire to arbitrate a matter and MLC shall specify the place of arbitration in writing to you within sixty (60) days of receipt of such notification of your desire to arbitrate. Within thirty (30) days from receipt by you of notification of venue, you shall submit a request for arbitration to the AAA regional office where the arbitration is to take place. If MLC desires to arbitrate a matter, MLC shall notify you in writing specifying the place of arbitration in writing to you and MLC shall submit a request for arbitration to the AAA regional office where the arbitration is to take place. The number of arbitrators shall be one. The arbitrator shall be an independent, impartial third party having no relationship to any of the parties to the dispute, who has agreed to accept the appointment as arbitrator on the terms set forth in this paragraph. The arbitrator shall be an active or retired attorney, law professor, or judicial officer with at least five (5) years experience in general commercial matters and intellectual property rights. The arbitrator shall be selected as follows: (a) The AAA at the selected regional Office shall submit to each Party a list of arbitrators available to arbitrate the dispute between them. The first arbitrator acceptable to both you and MLC shall be deemed the selected arbitrator with respect to the dispute in question. In the event of a failure to select a mutually agreeable arbitrator from said list, the AAA shall be requested to submit as many subsequent lists as shall be necessary to effect a mutual selection; (b) If, after sixty (60) days from the filing of the request for arbitration, the method of selection set out in above has failed for any reason, the AAA Case Manager will shall appoint an arbitrator that satisfies the requirements of this paragraph. Within thirty (30) days after any request for arbitration to the AAA regional office is made, the party requesting arbitration shall specify the questions to be arbitrated to the AAA at its regional office where the arbitration is to take place. Within thirty (30) days of the submission of the matter to be arbitrated by the AAA, the other Party shall give in like manner written notice specifying any additional questions to be arbitrated. You and MLC agree to pursue diligently all relevant discovery permitted in arbitration with the exceptions that MLC shall have no obligation to supply, convey or produce any information other than the information provided at www.molecularlock.com or exchanged between you and MLC. All discovery shall be completed within sixty (60) days following the later of: the appointment of the arbitrator; or the specification of the questions to be arbitrated by you and MLC to the AAA pursuant to this paragraph. Any dispute regarding discovery, or the relevance or scope thereof, shall be consistent with the terms of this Agreement and determined by the arbitrator, which determination shall be conclusive. Consistent with the expedited nature of arbitration and the terms of this Agreement, each Party will, upon the written request of the other Party, promptly provide the other with copies of documents relevant to the issues raised by any claim or counterclaim on which the producing Party may rely in support of or in opposition to any claim or defense. All proceedings and communications shall be in English. The arbitrator shall have no authority to award punitive or any other type of damages not measured by a Party’s compensatory damages. The arbitrator shall have no authority to make an award to you that is greater than the amounts actually paid to MLC by you. You expressly waive any claim in excess of the foregoing amount and agree that its recovery shall not exceed that amount, and any monetary award within this limit shall satisfy any claim of you against MLC. The arbitrator shall announce the award in writing within thirty (30) days of the conclusion of discovery, accompanied by written findings explaining the basis therefore in writing, including the principle facts and provisions of this Agreement on which the award is based. Within twenty (20) days of receiving the announcement of the arbitrator’s award, either Party may appeal an issue of law (i.e., a claim that the arbitrator misapplied or misinterpreted the law or fidelity to the Agreement) to an AAA Appellate Arbitrator by notifying the AAA Case Manager of the desire to appeal. The appeal shall be considered an Expedited Procedure and therefore subject to AAA Expedited Procedure E-3 (Serving of Notices), E-4 (Appointment and Qualifications of Arbitrator), E-9 (Time of Award) and E-10 (Arbitrator’s Compensation). There shall be no record of the appeal and there shall be no exchange of documents other than briefs supporting or opposing the appeal. Each Party may file and exchange one brief no longer than ten (10) pages. There shall be no other briefs. Upon the exchange and filing of these briefs, the matter shall be submitted for decision to the AAA Appellate Arbitrator. There shall be no oral argument. While the appeal is pending no Party shall seek to enforce the final award or seek to enter judgment thereon under federal or state law. The AAA Appellate Arbitrator shall have the power to: (a) affirm the original award in whole or in part; (b) dismiss some or all of the claims or counterclaims that were the subject of the original award; and (c) vacate the original award in whole or in part and issue a new award based on the factual findings set forth in the original award. The award of the AAA Appellate Arbitrator shall explain the basis for the award in writing and it shall be final and the award may be entered in any court having jurisdiction. Except to the extent necessary to confirm an award or as may be required by law, neither a Party nor an arbitrator nor the AAA may disclose the existence, content, or results of an arbitration commenced hereunder without the prior written consent of both you and MLC. The party requesting arbitration shall pay the arbitrators’ and any administrative fees of arbitration and you and MLC shall pay your own expenses for the costs of investigating, preparing, and pursuing arbitration and no such costs or expenses shall be awarded by the arbitrator to either party. You and MLC hereby agree that any monetary payment to be made by a Party pursuant to a decision of the arbitrator shall be made in United States dollars, free of any tax or other deduction.

If any provision of the Terms is or becomes illegal, invalid or unenforceable in any respect in any jurisdiction, that shall not affect the validity or enforceability in that jurisdiction of any other provision of the Terms or the validity or enforceability in other jurisdictions of that or any other provision of the Terms. If any provision hereof should be held invalid, illegal or unenforceable in any respect in any jurisdiction, you and MLC shall substitute, by mutual consent, valid provisions for such invalid, illegal or unenforceable provisions, which valid provisions in their economic effect and commercial purpose are sufficiently similar to the invalid, illegal or unenforceable provisions that it can be reasonably assumed that you and MLC would have entered into the Terms with such valid provisions. In case such valid provisions cannot be agreed upon, the invalid, illegal or unenforceable provisions of the Terms shall not affect the validity of the Terms as a whole unless the invalid, illegal or unenforceable provisions are of such essential importance to the Terms that it is to be demonstrated that the you and MLC would not have entered into this Agreement without the invalid, illegal or unenforceable provision.

Our exercise of any option or failure to exercise any rights hereunder shall not constitute a waiver of our rights to damages for breach of contract and shall not constitute a waiver of any subsequent failure, delay, or breach by you. You may not assign your rights hereunder, however, we may assign our rights and/or obligations under these Terms to any person in whole or in part.

No provision of the Terms can be waived except by the written consent of the Party waiving compliance. The failure of a Party in any one or more instances to insist upon strict performance of any of the terms and conditions of the Terms shall not constitute a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms or conditions on any future occasion.

No headings in the Terms affect its interpretation.