GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale ("Terms") shall govern all orders for and purchases of services and products from Applied Food Technologies, Inc. ("AFT"), including species identification tests, unless other terms are specifically designated by AFT to apply to a specific service or product, or AFT and buyer have entered into a master purchase agreement or other written agreement that expressly provides that its terms supersede and replace these Terms with respect to the services or products covered by the master purchase or other agreement (See Section 12, SOLE TERMS, INCONSISTENCIES, ORDER OF PRECEDENCE).
1. PRICE. The price for any service or product (hereinafter collectively "Service or Services") shall be the price stated in AFT’s quotation to buyer for the Service ("AFT’s Quotation") or, if AFT has not issued a quotation, AFT’s list price of the Service at the time AFT receives buyer’s purchase order. AFT’s Quotations are valid for 30 days from the quotation date unless otherwise stated in AFT’s Quotation. If AFT’s quotation pricing is contingent upon purchase volume or quantity, then AFT reserves the right to readjust the price, up or down, to reflect the purchase volume or quantity of services which actually occurred. If AFT’s price is stated by reference to a price list, then the price shall be AFT’s list price in the jurisdiction in which the Service is to be delivered or performed in effect at the time AFT receives buyer’s purchase order.
2. PAYMENT TERMS; COLLECTION COSTS; SECURITY TERMS. Payment terms are net 15 days from date of AFT’s invoice. If AFT deems buyer to be or to have become uncreditworthy, AFT shall have the right to require alternative payment terms, including without limitation sight draft, letter of credit, or payment in advance. If payment is not received by the due date, AFT may assess and buyer agrees to pay a late payment charge at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment. If AFT retains a collection agency or attorney to collect unpaid amounts, AFT may invoice buyer for, and buyer will pay, all reasonable costs of collection, including without limitation reasonable attorneys fees. Buyer hereby grants to AFT and AFT reserves a purchase money security interest in all tangible product purchased from AFT, and in any proceeds thereof, for all amounts owing to AFT for or related to such product. Upon request by AFT, buyer shall sign any reasonable documents required for AFT to perfect such security interest and, to the fullest extent permitted by law, buyer hereby expressly grants AFT authority and a limited power of attorney to file financing statements and amendments thereto for and on behalf of buyer for such product and any proceeds thereof. Payment in full of all amounts owed for and related to such product shall release such security interest in the product and proceeds.
3. CREDIT TERMS. AFT may, at any time and in its sole discretion, limit or cancel the credit of buyer as to time and amount, suspend shipments, demand payment in cash before delivery or conduct of Service, or demand other assurances of buyer’s performance. If buyer fails to agree and comply with the different terms of payment demanded, or fails to give adequate assurances of performance, AFT may, without prejudice to any other right or remedy AFT may have: (i) by notice to buyer, treat such failure or refusal as a repudiation by buyer of that portion of buyer’s order not then fully performed, whereupon AFT may cancel all further performance, and any amounts unpaid for non-cancelled Service shall immediately become due and payable; or (ii) make performance under reservation of a security interest, whereby the buyer will execute any documents necessary to create and perfect this security, and demand payment against tender of analysis results or title documents.
4. ACCEPTANCE OF ORDERS, DELIVERY, TITLE AND RISK OF LOSS. AFT may accept or reject any buyer purchase order for Service in whole or in part. If a purchase order is accepted, AFT will use reasonable efforts to ship tangible product or perform services subject to the purchase order within a reasonable time after ordered, or, if a shipment or service commencement date is indicated in AFT’s Quotation or otherwise agreed upon in writing by an authorized representative of AFT, on or before such date. AFT may make delivery in installments, and each installment shall be deemed to be a separate sale. AFT may render a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. Unless indicated otherwise in AFT’s Quotation, title and risk of loss with respect to all products shall pass from AFT to buyer upon transfer of possession of the Service to a common or other third party carrier at AFT’s facility.
5. CANCELLATION AND DEFERRAL. BUYER MAY NOT CANCEL ANY PURCHASE ORDER. However, unless otherwise stated in AFT’s Quotation, buyer may defer the shipment date one time for up to 30 days for kits and other tangible product, by giving written notice to AFT at least 10 days before the scheduled shipment date for product. Buyer may not cancel an order for services, such as identification services, once sample has been received by AFT without written consent of AFT.
6. REJECTION AND RETURN OF PRODUCT. Any claims for damaged, missing or defective product must be reported in writing by buyer within 5 days from the date of buyer’s receipt of the product. In addition, buyer must promptly return a rejected product to AFT, C.O.D., unused and in a condition no worse than that delivered to buyer and in the product’s original containers and packing material, accompanied by a valid return authorization number obtained from AFT. AFT may refuse any product not timely rejected or sought to be returned without a valid return authorization number. For any valid claim timely made, AFT, at its option, may replace the product with an identical or substantially similar product. Shipping charges will not be credited. THESE ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR DAMAGED OR MISSING PRODUCT, AND, EXCEPT FOR EXPRESS WRITTEN WARRANTY RIGHTS, FOR DEFECTIVE PRODUCT. AFT may require that buyer signs and delivers a properly completed certificate of decontamination prior to returning any product.
7. LIMITED WARRANTY. AFT makes only those warranties with respect to Service expressly identified as "warranties" and set forth in AFT’s current catalog, or in a specific written warranty included with and covering Service, if any. Warranties are made only to the buyer purchasing the Service directly from AFT, are not transferable and do not extend to the benefit of any other person or entity, unless otherwise expressly stated in writing by AFT. ANY PRODUCT OR SERVICE NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. THE WARRANTIES IDENTIFIED IN THE FIRST SENTENCE OF THIS PARAGRAPH ARE AFT’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO SERVICE AND ARE IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, ALL OF WHICH OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE. IF A COURT FINDS LIABILITY ON THE PART OF AFT BASED ON A CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS, BUYER EXPRESSLY AGREES THAT AFT’S LIABILITY IS LIMITED TO THE PRICE PAID TO AFT FOR THE PRODUCT OR SERVICE.
8. COMPLIANCE WITH LAWS, USE OF SERVICE, VALIDATION. The parties understand and agree that any products labeled "For Research Use Only" have not received any governmental approval, clearance, or similar designation ("Product Approvals"), do not satisfy the requirements of any governmental body or other organization, and have not been validated for clinical or diagnostic use, for safety and effectiveness, or for any other specific use or application; and the buyer is solely responsible for compliance with any and all applicable laws, and regulations, and governmental policies that pertain to its use of the product including, but not limited to, obtaining any necessary Product Approvals. Services should be used by qualified professionals in strict accordance with applicable instructions, warnings and other information in user manuals and other product documentation. The burden of proof for safe use and handling of products sold by AFT to the buyer is entirely the responsibility of the buyer.
9. USE RESTRICTIONS. The buyer is not licensed to, and agrees not to: (a) distribute any product or results of services, directly or indirectly, to any third party for any purpose or use, except with prior written consent obtained from AFT, with the exception that results of identification services may be shared with interested parties related to any product on which services were performed; (b) use or allow anyone to use an AFT supplied product contrary to applicable instructions; (c) decompile, deconstruct, disassemble or make other attempts to reverse engineer product; (d) or provide a fee-for-service or other noncollaborative sample processing service to third parties using any AFT supplied product or services (e.g. wherein the service provider offers standardized services for standardized fees to multiple parties, the customer does not contribute scientifically to the services performed and all rights to the results and discoveries derived therefrom are transferred to the customer). The buyer acknowledges that failure to comply with any restriction of use set forth herein may constitute a violation or infringement of AFT’s and/or a third party’s intellectual property rights.
10. FORCE MAJEURE. AFT shall not be liable for any delay or failure of performance, including without limitation failure to deliver product or failure to perform a service, where such delay or failure arises or results from any cause beyond AFT’s reasonable control, including, but not limited to, flood, fire, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, plant breakdown, computer or other equipment failure, unusually severe weather, earthquake or other act of God, power loss or reduction, strike, lock-out, boycott or other labor disputes of any kind (whether relating to its own employees or others), embargo, governmental regulation or an inability or delay in obtaining materials. In the event of any such delay or failure of performance, AFT shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances; and AFT shall also have the right, to the extent necessary in AFT’s reasonable judgment, to apportion products or services then available for delivery fairly among its various customers in such manner as AFT may consider equitable. Liability of AFT for any delay or failure of performance, including without limitation failure to deliver product or failure to perform a service, where such delay or failure arises or results from any cause that may have been within AFT’s control, is limited to the price paid to AFT by the buyer for the product or service.
11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL AFT BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR CAUSED BY PRODUCTS OR SERVICES, AFT’S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF PRODUCTS OR SERVICES OR PERFORMANCE OF PRODUCTS OR SERVICES, AFT’S BREACH OF THESE TERMS, THE POSSESSION OR USE OF ANY PRODUCT, OR THE PERFORMANCE BY AFT OF ANY SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT AFT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF PRODUCT BY BUYER OR THIRD PARTY, STORAGE COSTS, PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR LOSS OF REVENUE, PROFITS, GOODWILL, OR BUSINESS OR OTHER FINANCIAL LOSS.
12. SOLE TERMS; INCONSISTENCIES; ORDER OF PRECEDENCE. These Terms, together with AFT’s Quotation, any applicable label license or patent statement or other written conditions of use, any other terms and conditions expressly agreed to in writing by an authorized representative of AFT "(collectively, "AFT’s Terms"), and buyer’s statement on its purchase order (if accepted by AFT) of the name or identity of the Service(s) purchased, quantity, delivery date, bill to and ship to address and, if accurate, price (and only such information on buyer’s purchase order), constitute the complete, exclusive and entire agreement between AFT and buyer with respect to purchases of Service (unless other terms and conditions are expressly designated to be applicable by AFT in writing), and AFT’s offer to sell Service is expressly limited to such terms. Such terms shall take precedence over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, and any of buyer’s additional or different terms and conditions, which are hereby rejected and shall be void. Buyer’s submission of a purchase order or other instrument for or regarding the purchase of Service, whether or not in response to an AFT Quotation, shall be deemed acceptance of and agreement to AFT’s Terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order (except the name or identity of services or products purchased, quantity, delivery date, bill to and ship to address and, if accurate, price) or other instrument, which are hereby deemed to be material alterations and notice of objection to which is hereby given, notwithstanding anything contained to the contrary in buyer’s purchase order or other instrument or elsewhere. Any acceptance by AFT of any offer of buyer is expressly conditioned on buyer’s assent to and acceptance of AFT’s Terms to the extent they are additional or different terms from those of buyer’s offer. Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on AFT’s Quotation or other agreement signed by an authorized representative of AFT, the terms appearing on AFT’s Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms, provided these terms were expressly created or assented to by an authorized AFT representative, and all other provisions of these Terms shall remain in full force and effect.
13. NO IMPLIED RIGHTS. Nothing in these Terms shall be deemed or construed (i) as a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise; (ii) to limit AFT’s rights to enforce its patent or other intellectual property rights, including, without limitation, as to use of any product beyond that granted under any patent or other intellectual property label license or statement applicable to the product; (iii) as granting buyer any right to be supplied with any product, or component thereof, beyond those ordered by buyer and supplied by AFT in accordance with these Terms; or (iv) as a license or grant of any right to buyer to manufacture or to have manufactured any product. AFT shall not release, nor shall AFT be required to release, any information concerning DNA sequences or other proprietary information relating to services performed, including raw DNA sequencing data or derivatives thereof, access to sequence information, databases used by AFT, sequences of oligonucleotides, components used, or other information regarding the internal processes of AFT in performing services for buyer.
14. CHOICE OF LAW. Any contract between AFT and buyer relating to Service, including these Terms, and any disputes relating thereto, shall be governed by and construed in accordance with the laws of Alachua County, State of Florida, U.S.A., excluding both its choice of law provisions and the United Nations Convention on Contracts for the International Sale of Goods.
15. EXPORT CONTROLS. Buyer agrees that it will not export or transfer product for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.
16. MISCELLANEOUS. No amendment of AFT’s Quotation or these Terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both AFT and buyer. AFT’s failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these Terms for any other purpose. If any provision of these Terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect.
17. THIRD PARTY SERVICES AND SERVICES. Buyer acknowledges and agrees that third party services and services acquired via any AFT sales channels are governed by contractual terms provided by the sellers of such third party services and services. AFT has no control over and does not guarantee the quality or safety of the third party services or products, the truth or accuracy of third parties’ content or listings, the ability of third party sellers to sell services or products, the timely delivery of such services or products, or that the third party seller will complete a transaction. Buyer acknowledges that when the buyer makes a purchase from or enters into a license with a third party seller via an AFT sales channel, AFT is not a party to such transaction and the contractual relationship is solely between buyer and the third party seller. Buyer further agrees that it is buyer’s sole responsibility to pre-approve any third party seller that buyer conducts business with, and that buyer assumes sole responsibility for any risks or liabilities that may arise out of such transaction. Buyer acknowledges that AFT makes no representations or warranties regarding the creditworthiness or any other matter regarding any services or services of third parties. It is at the buyer’s sole discretion to reject any transaction with a third party seller and obtain the same or alternate services through other channels. Buyer irrevocably waives and releases AFT from any claim that buyer may have, now or in the future, known or unknown, as a result of the content, action or inaction of third party sellers, or services or services that buyer purchases or licenses from third party sellers via AFT. In the event AFT uses a third party supplier of products or services to fulfill orders for buyer, whether disclosed or not disclosed to buyer, without disclosing the name of the service provider to buyer, then AFT’s Terms shall apply to that product or service.
18. BUYER’S REPRESENTATIONS. By submitting an order, buyer represents, warrants and agrees that buyer will provide AFT with all information known to buyer regarding biological, radiological, and chemical hazards associated with the handling, transport, exposure to or other use of any materials supplied to AFT by buyer.
19. CONFIDENTIAL INFORMATION OF BUYER. From time to time buyer may share Confidential Information of Buyer with AFT. If such information is expressly labeled as confidential information, AFT will use at least the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care, to prevent the disclosure of such Confidential Information of Buyer to any third party. This undertaking of confidentiality shall not apply to, and AFT shall have no obligations under this paragraph with respect to, any Confidential Information of Buyer that (a) was in AFT’s possession before receipt from buyer, (b) is or becomes a matter of public knowledge or part of the public domain through no fault of AFT, (c) is rightfully received by AFT from a third party that was not obliged to keep such information confidential, (d) is developed by AFT without reference to Confidential Information of Buyer, or (e) is disclosed by AFT with buyer’s prior written approval. Notwithstanding the foregoing, AFT may disclose Confidential Information of Buyer to the extent required to comply with governmental regulations and other applicable laws or to respond to subpoena or other compulsory legal process, provided in all cases that AFT takes reasonable and lawful actions to avoid or minimize the extent of such disclosure.