TERMS AND CONDITIONS OF SALE FOR Thomas Scientific, LLC

BY PLACING AN ORDER IN RESPONSE TO A QUOTE OR OTHER COMMUNICATION REFERENCING THESE TERMS OR SUBMITTED VIA SELLER’S WEBSITE; PURCHASING, ACCEPTING, OR USING GOODS TO WHICH THESE TERMS APPLY; OR ANY OTHER METHOD PERMITTED UNDER APPLICABLE LAW), BUYER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THESE TERMS AND ANY OTHER TERMS OR POLICIES REFERENCED HEREIN, WITH THE SAME EFFECT AS IF BUYER HAD SIGNED THESE TERMS IN WRITING.  THE PARTIES ACKNOWLEDGE THAT THE PRICES IN ANY QUOTE PROVIDED BY SELLER ARE CONTINGENT UPON ACCEPTANCE OF THESE TERMS.

1. Applicability.

These Terms and Conditions of Sale (these “Terms”), together with the Core Economic Terms of (i) any purchase orders submitted by Buyer and accepted by Seller (but for the avoidance of doubt, not any legal terms therein), or (ii) orders submitted by Buyer on Seller’s website, form a valid and written agreement (the “Agreement”) between you (“Buyer”) and Thomas Scientific, LLC (“Seller”) and govern the sale of any products and/or services (“Goods”) under such order. Buyer and Seller are referred to individually herein as a “Party” and collectively as the “Parties". The core economic terms of a PO consist solely of (a) the Goods to be purchased, (b) the price of the Goods, and (c) the quantity of the Goods (“Core Economic Terms”). The Agreement comprises the entire agreement between the Parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, including any preprinted terms on Buyer’s purchase orders, requests, payments or other documents. Other than Core Economic Terms, acceptance or fulfillment by Seller of a PO does not constitute acceptance of any terms or conditions (other than these Terms) included or referenced in documents from Buyer. The Parties acknowledge that such other terms do not supersede, replace, modify, amend, or supplement these Terms. Seller may amend or modify these Terms from time-to-time, in its absolute and sole discretion; provided however, the updated terms will only apply to POs accepted by Seller after the date of the update.

2. Orders, Acceptance, Title, Shipping, Risk of Loss.

1. If Buyer wishes to purchase any Goods, Buyer will submit a purchase order to Seller (or submits an order on Seller’s website), and Seller will use commercially reasonable efforts to confirm its acceptance of the purchase order to Seller in writing within 3 business days (once accepted by Seller, each a “PO”). If Seller has not confirmed its acceptance of the purchase order to Seller in writing within 10 business days, the purchase order will be deemed accepted by Seller. Seller may refuse to accept purchase orders submitted by or for Buyer for any reason. Seller will use commercially reasonable efforts to deliver Goods by the date set in a PO, or otherwise within a reasonable time after acceptance of the PO. Any lead times or shipment dates (whether requested by Buyer and/or quoted or otherwise provided by Seller) are estimates only. In no event will Seller be liable for any loss, damage, or expenses of any kind related to any failure to deliver Goods in accordance with the given lead time or shipment date.
2. Unless otherwise agreed in writing by the Parties, the delivery terms for the Goods will be Ex Works INCOTERM 2020 (EXW) Seller’s applicable facilities (or such other location that Seller may denote at Seller’s sole discretion) (the “Delivery Terms”). Buyer will pay all costs relating to transportation, storage, delivery, duties/taxes and insurance from Seller’s facilities. Buyer will provide Seller with shipping instructions and associated freight account number(s) on the applicable Order and if Buyer fails to do so, Seller may determine the carrier and means of transportation and will ship the Goods freight collect. In such instances, title and risk of loss or damage to the Goods will be transferred from Seller to Buyer upon Seller’s provision of the Goods according to the Delivery Terms. Without limiting any of the foregoing, Buyer will be solely responsible for damages and filing claims relating to any Goods lost or damaged in transit.
3. Unless otherwise agreed, all Goods will be packaged, marked, and prepared for shipment in a manner that is (i) acceptable to common carriers for shipment of the particular Goods, (ii) in material accordance with applicable laws and regulations, and (iii) reasonably adequate to facilitate safe arrival of the Goods at the designated destination.
4. The Goods will be deemed irrevocably accepted by Buyer when Seller provides the Goods according to the Delivery Terms.
5. Buyer may return certain Goods to Seller, but solely as permitted by these Terms. All returns of Goods must have prior authorization from Seller, which authorization is in Seller’s sole and absolute discretion. Such prior authorizations must be requested within 30 days of the date Seller first provides the Goods to Buyer according to the Delivery Terms. Goods returned without prior authorization will be returned freight collect. All Goods returned are subject to a minimum 20% restocking fee. Buyer will be responsible for all transportation fees on returns not covered under the Limited warranty or Seller's violation of this Agreement. Goods not eligible for return include: (i) items not purchased directly from Seller; (ii) Goods not in original packaging, including Goods with damaged, missing, or defaced labeling and packaging; (iii) Goods lacking any original manuals, instructions, warnings, or warranties; (iv) Goods that have been customized, modified or damaged in any way; (v) Goods purchased on a “special order”; (vi) discontinued Goods; (vii) chemicals, diagnostics, sterile or controlled products; (viii) Goods which are not inventoried by Seller; (ix) Goods Seller cannot return to the manufacturer for any reason; (x) Goods with an expired shelf life or expiration dates with less than six (6) months remaining; (x) refrigerated or other perishable Goods; (xii) Goods that may be in high demand due to a Force Majeure or other situations of crisis.
6. As between Buyer and Seller, Buyer is responsible for installation of the Goods, except when services applicable to installation of the Goods (“Installation Services”) are set forth in an applicable PO. Where a PO sets forth that Seller will provide Installation Services, Buyer shall use reasonable efforts to schedule the Installation Services promptly and in no event more than 3 months of Seller’s delivery of the applicable Products. If, after 3 months from such delivery date, Buyer has not permitted Seller to complete the Installation Services, the Installation Services will automatically be deemed complete and accepted by Buyer, and Buyer will not be entitled to any refund for the Installation Services.
7. As between the Parties, Seller and its suppliers and licensors (as applicable) own all right, title and interest (including all intellectual property and other proprietary rights) in and to Seller’s technology, software, designs, data, and other similar material relating to or incorporated in the Goods and any accompanying documentation.

3. Price.

Buyer will purchase the Goods at the price(s) set forth by Seller, whether on Seller’s website or by invoice (the "Price"). Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer will be responsible for all such charges, costs and taxes; provided, that, Buyer will not be responsible for any taxes related to Seller's income. If Seller is required to pay any withholding tax or charge on any payments due to Seller, Buyer must gross up payments so Seller receives all sums due in full, free of any deduction for any such withholding.  Buyer is responsible for any freight and deliver charges.

4. Payment Terms.

Unless otherwise agreed in writing by the Parties, Buyer will pay all invoiced amounts due within 30 days of the invoice date. The amount of credit or terms of payment may be changed or withdrawn by Seller in its discretion at any time. Buyer will make all payments to Seller in US dollars. Without limiting other remedies, all past due payments will accrue interest at the lower of (a) 1.5% per month on the unpaid balance or (b) the highest rate allowed by law. Buyer will pay all collection costs, attorneys' fees, court costs, and all other costs incurred in the collection of past due amounts. Buyer hereby grants to Seller a purchase money security interest in the Goods to secure the purchase price of the Goods until the purchase Price is paid in full. Buyer agrees to execute and deliver all documents requested by Seller to perfect and maintain Seller’s security interest(s).

5. Limited Warranty; Disclaimers.

1. For Goods provided directly to Buyer by Seller, Seller will pass through to Buyer the warranty(ies) that are incorporated in or included as part of the Goods, in substantially the same form and substance as Seller receives such warranties from its applicable manufacturers and suppliers, to the extent permitted by such manufacturers, suppliers, and the terms applicable to such warranties (collectively, the “Limited Warranty”), which shall be effective for the period of time set forth in the applicable warranty and according to the terms from the applicable manufacturer/supplier (“Warranty Period”).
2. EXCEPT FOR THE LIMITED WARRANTY, THE GOODS ARE PROVIDED “AS IS” WITH ALL FAULTS AND DEFECTS. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER WITH RESPECT TO THE GOODS, WHETHER EXPRESS OR IMPLIED BY LAW, OR IMPLIED BY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SELLER HEREBY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, SELLER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, DESIGN, ACCURACY, NON-INFRINGEMENT, ENJOYMENT, INTERFERENCE, OPERATION OR FITNESS FOR A PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE GOODS WILL SATISFY BUYER’S REQUIREMENTS OR THAT THE OPERATION OF THE GOODS WILL BE UNINTERRUPTED OR ERROR FREE. BUYER ACKNOWLEDGES THAT NO EMPLOYEE OR CONTRACTOR OF SELLER OR ANY AFFILIATE OR OTHER THIRD PARTY IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SELLER. WITHOUT LIMITING THE FOREGOING, NEITHER SELLER NOR ANY PERSON OR ENTITY ASSOCIATED WITH SELLER REPRESENTS OR WARRANTS THAT: (A) ANY CONTENT, DATA, OR INFORMATION ABOUT OR FROM THE GOODS WILL BE UP-TO-DATE, COMPREHENSIVE OR ACCURATE; OR (B) THAT DEFECTS WILL BE CORRECTED. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE, OR INABILITY TO USE GOODS REMAINS WITH BUYER. THE DISCLAIMERS DO NOT AFFECT WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
3. The Limited Warranty does not apply in relation to, and Seller shall have no liability for, problems that arise from: (i) any third-party products or services, including those with which the Goods are combined or jointly used; (ii) any causes outside of Seller’s reasonable control, including but not limited to a Force Majeure (as defined below); (iii) installation, operation, or use of Goods not in accordance with this Agreement, Seller’s or the manufacturer’s instructions or documentation, or any listed restrictions on use; (iv) use of Goods in an environment, in a manner, or for a purpose for which the Goods were not designed; (v) any modification, alteration, or repair of Goods by anyone other than Seller or its authorized representatives; (vi) causes attributable to normal wear and tear; (vii) use, possession, provision, or relocation of Goods prohibited by applicable law, regulation, or governmental order; or (viii) installation, possession, or use of Goods after expiry of the applicable Warranty Period. Seller has no warranty obligations to any entity other than Buyer or for Goods purchased from any entity other than Seller.
4. With respect to Goods subject to a valid warranty claim by Buyer during the applicable Warranty Period, Seller will, in its sole discretion, either: (i) repair or replace such Goods (or the defective part thereof), or (ii) credit or refund to Buyer the Price of such Goods. For the avoidance of doubt, in the case of a replacement under (i) above, Seller may replace such Good(s) with comparable Good(s) (“Replacement Goods”). The applicable Warranty Period for Replacement Goods will be the longer of the remainder of the original Warranty Period for the Goods or 90 days. If Buyer receives a Replacement Good but does not return the corresponding defective Good to Seller, then Buyer must pay Seller for the Replacement Good.
4. THE REMEDIES IN SECTION 5(D) ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.

6. Limitation of Liability.

1. Indirect Damages. To the maximum extent permitted by law, WITH RESPECT TO THIS Agreement AND ANY DAMAGES OR LIABILITY ARISING HEREUNDER OR IN CONNECTION HEREWITH, in no event will SELLER be liable TO BUYER (OR ANY AFFILIATE OF BUYER OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, SHAREHOLDERS, AFFILIATES, CUSTOMERS, OR OTHER REPRESENTATIVES) for ANY incidental, special, indirect, consequential, EXEMPLARY, ENHANCED, or punitive damages whatsoever, including damages for lost time, loss of data, LOSS OF GOODWILL, LOSS OF REVENUE OR PROFIT, or for business interruption under any theory of liability, WHETHER ARISING OUT OF OR BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, even if advised of the possibility of those damages.
2. Limitation on Damages. To the maximum extent permitted by law, WITH RESPECT TO THIS AGREEMENT AND ANY DAMAGES OR LIABILITY ARISING IN CONNECTION HEREWITH, in no event will SELLER’S TOTAL liabILITY TO BUYER (OR ANY AFFILIATE OF BUYER OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, SHAREHOLDERS, AFFILIATES, CUSTOMERS, OR OTHER REPRESENTATIVES) OR ANY THIRD PARTIES under any AND ALL theory(IES) of liability (INCLUDING WITHOUT LIMITATION THEORIES BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE) EXCEED THE LESSER OF (1) THE TOTAL FEES PAID BY BUYER TO SELLER UNDER the APPLICABLE PO, OR (2) TEN-THOUSAND DOLLARS ($10,000).
3. Severability and Enforceability. THE PARTIES ACKNOWLEDGE THIS SECTION 6 IS AN ESSENTIAL PART OF THE BARGAIN BETWEEN THE PARTIES, HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS Agreement, AND THE PART.IES WOULD NOT HAVE ENTERED INTO THE TRANSACTIONS HEREUNDER ON THE TERMS HEREOF BUT FOR THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 6 AS WRITTEN. THE PARTIES AGREE THIS SECTION 6 SHOULD AND WILL APPLY TO ALL TRANSACTIONS HEREUNDER REGARDLESS OF THE FAILURE OF ANY REMEDY HEREUNDER OF ITS ESSENTIAL PURPOSE.

7. Termination.

In addition to any remedies that may be provided under this Agreement, Seller may immediately terminate this Agreement (in whole or in part) and/or any pending PO or ongoing warranty hereunder without incurring any liability if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for at least 10 days after the due date for such payment(s); (b) has not otherwise performed or complied with any of this Agreement, and such failure continues for 15 days; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Buyer acknowledges all POs accepted by Seller are firm orders and may not be canceled or modified by Buyer without the prior written approval of Seller. 

8. Export Control and Government Regulations.

Buyer acknowledges that any or all of the Goods may be subject to export control laws, related regulations, regulatory determinations, judicial decisions, and other economic sanctions (the “Export Regulations”), and that diversion contrary to Export Regulations is prohibited. Buyer represent, warrants, and covenants that (1) with respect to all Goods, Buyer will comply will all applicable Export Regulations; and (2) Buyer will not permit the Goods to be used for any purposes prohibited by Export Regulations.

9. General.

Seller will not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any obligation under this Agreement when such failure or delay is caused by or results from circumstances beyond the reasonable control of Seller, including without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, supply chain interruptions, industrial disturbances, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to Seller's workforce), power outages, or restraints or delays affecting carriers, supply chain delays, or Seller’s inability to timely obtain supplies of suitable goods, materials, (each a “Force Majeure”). Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Seller may assign, delegate, or subcontract this Agreement and/or any or all of its rights or obligations hereunder. Any purported assignment or delegation in violation of this Section 9 is null and void. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever. This Agreement shall be governed by the laws of the State of New Jersey, without regard to any conflict of law principles that would require the application of laws of any other state. All claims or disputes arising out of or in connection with this Agreement will be heard exclusively by the federal or state courts located in New Jersey. To that end, each Party irrevocably consents to the exclusive jurisdiction of, and venue in, any such court and waives any right to object that any such court does not have jurisdiction. The UN Convention for the International Sale of Goods will not apply to this Agreement. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") will be in writing and addressed to the Parties at the addresses set forth on the face of the PO or to such other address that may be designated by the receiving Party in writing. All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt of the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section 9. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. No waiver by a Party of any provision hereunder is effective unless explicitly set forth in writing and signed by such Party. No failure or delay to exercise any right, remedy or privilege arising hereunder operates, or is construed, as a waiver thereof. No single or partial exercise of any right, remedy, or privilege hereunder precludes any other exercise thereof or the exercise of any other right, remedy, or privilege. Each Party will comply with all applicable laws, regulations and ordinances. Any use of Goods and related documentation by or for the U.S. Government will be governed solely by this Agreement.