Terms and Conditions of Sale
Effective as of 10/01/19
1. Entire Agreement
All purchases of goods (“Goods”) from Axenic Health Solutions, Inc. and/or its affiliates (“Axenic”) by the customer (“Customer”) shall be subject to these standard Terms and Conditions of Sale. These Standard Terms and Conditions of Sale, as supplemented by the applicable purchase quantities, prices, schedule and facilities location (collectively, the “Agreement”), are the entire agreement between Axenic and Customer with respect to the Goods purchased. The Agreement is not an acceptance of any offer or counteroffer to purchase, and any contract of sale is expressly conditioned on Customer’s assent to all of the terms and conditions set forth in the Agreement. Axenic objects to any additional or different terms or conditions contained in any request for quotation, purchase order, or other document or communication previously or hereafter provided by Customer to Axenic, and Axenic’s shipment of any Goods shall not be construed as assent to any such terms or conditions. No such additional or different terms or conditions will be of any force or effect. There are no conditions to the Agreement that are not so contained in the Agreement.
Axenic reserves the right to make adjustments to pricing and Goods at any time without notice to Customer, for no reason or any reason, including, but not limited to, changing market conditions, discontinuation, unavailability, manufacturer price changes and errors in advertisements.
3. Delivery, Claims and Force Majeure
Goods shall be delivered to Customer F.O.B. Axenic’s loading dock, freight collect. Delivery of Goods to the carrier shall constitute delivery to Customer; and regardless of shipping terms or freight payment, Customer shall bear all risk of loss or damage in transit. Axenic reserves the right to make delivery in installments, unless otherwise expressly stipulated herein. Delay in delivery of any installment shall not relieve Customer of its obligations to accept remaining deliveries. Claims for shortages or other errors in delivery must be made in writing to Axenic within ten (10) calendar days after pickup or receipt of shipment; and failure to give such notice shall constitute unqualified acceptance of the Goods and a waiver of all such claims by Customer. Claims for loss of or damage to Goods in transit must be made to the carrier, and not to Axenic. All delivery dates are approximate. Axenic shall not be liable or responsible to Customer, nor deemed to have defaulted or breached the Agreement, for any losses or damages as a result of any delay or failure in delivering Goods under the Agreement when and to the extent such delay or failure is caused by or results from any cause beyond Axenic’s reasonable control, including but not limited to any act of God, act or omission of Customer, technical problems or technical questions, embargo or other governmental act, regulation or request, fire, flood, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the date of delivery of Goods shall be extended for a period equal to the time lost because of the delay. Customer’s exclusive remedy for other delays and for Axenic’s inability to deliver Goods for any reason shall be rescission of the Agreement, and written notice of such rescission must be delivered by Customer within ten (10) days after such delay or inability to deliver. In the event that the Customer wrongfully fails to accept delivery, Customer shall indemnify Axenic against any damages resulting therefrom.
Axenic may at any time make such changes in formulation of Goods as Axenic deems appropriate, without notice to Customer. If Axenic changes the formulation, or discontinues the manufacture or sale of any Goods, Axenic shall have no obligation to make any such changes to any Goods previously ordered by or shipped to Customer or to fill any order for any discontinued Good submitted to Axenic after the date of notice of such discontinuance. Axenic may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
5. Warranties to Consumers
Axenic makes no written warranty to any purchaser for personal, family or household use (a “Consumer”).
6. Warranties to Other Customers
Axenic warrants to Customers other than Consumers that Goods provided hereunder will be free of defects in materials and workmanship, appearing within one (1) year from the date of shipment. If any such Goods shall be proved to Axenic’s satisfaction to be defective, Axenic shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. Such repair, replacement or refund (whichever Axenic determines, in its discretion, to provide) shall be Axenic’s sole obligation and Customer’s exclusive remedy for any deficiency in Goods furnished hereunder. Any Goods repaired or replaced under this warranty are warranted only for the balance of the warranty period on the Goods that were repaired or replaced. Notwithstanding anything contained herein to the contrary, Axenic shall have no liability whatsoever, and the warranty set forth above shall be void, with respect to defects resulting from (i) changes or modifications made by Customer or a third party and (ii) the improper use or maintenance of the Goods by Customer or a third party. Customer shall comply with Axenic’s instructions for maintenance, service and use of the Goods and shall keep proper records thereof.
THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED; AND AXENIC EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
7. Intellectual Property
All Intellectual Property related to the Goods and other Intellectual Property of Axenic shall remain the property of Axenic. Any Intellectual Property conceived or created by Axenic in connection with its performance hereunder shall be owned by Axenic. “Intellectual Property” includes, without limitation, rights in patents, patent applications, formulae, processes, trademarks, trademark applications, trade names, inventions, copyrights and industrial designs. For purposes hereof, “inventions” means information relating to any data, innovation, improvement, development, discovery, computer program, device, trade secret, method, know-how, process, technique or the like, whether or not written or otherwise fixed in any form or medium, regardless of the media on which it is contained and whether or not patentable or copyrightable. Customer is granted no right to the use of Axenic’s trademarks except as the Goods and/or materials supplied by Axenic may bear such trademarks. Axenic’s trademarks are and shall remain the exclusive property of Axenic, which shall continue to have the exclusive right to register the trademarks throughout the world. All use of such trademarks by Customer shall inure to the benefit of Axenic. In the event Customer shall be deemed to have acquired any such rights in such trademarks, Customer agrees to execute all documents reasonably requested by Axenic to assign all such rights to Axenic.
8. Consequential Damages and Other Limitations of Liability
Axenic’s liability with respect to Goods sold hereunder shall be limited to the warranties provided in Section 6 hereof, and, with respect to any other breaches of the Agreement, shall be limited to the price of the applicable Order Confirmation. AXENIC SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO GOODS SOLD BY AXENIC, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Axenic specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute Goods, or for any other types of economic loss, or for claims of Customer’s customers or any third party for any such damages, costs or losses. AXENIC SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL, INDIRECT AND CONTINGENT DAMAGES WHATSOEVER. Some states do not allow the exclusion or limitation of incidental or consequential damages suffered by Consumers, so the above exclusion may not apply to you.
CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS AXENIC FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, DAMAGES AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES AND OTHER COSTS OF DEFENSE) THAT AXENIC MAY INCUR AS A RESULT OF ANY CLAIM, OTHER THAN A CLAIM FOR THE REMEDIES PROVIDED IN SECTION 6 HEREOF, BY CUSTOMER OR BY ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH (a) GOODS SOLD HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY SUCH CLAIM BASED UPON THE NEGLIGENCE OF AXENIC IN FORMULATING, PACKAGING AND/OR SELLING SUCH GOODS, UNLESS SUCH LOSSES, LIABILITIES, DAMAGE4S OR EXPENSES ARE ULTIMATELY DETERMINED TO BE ATTRIBUTABLE SOLELY TO THE WILLFUL MISCONDUCT OF AXENIC; AND (b) ANY ALLEGED INJURY TO PERSONS OR PHYSICAL DAMAGE TO PROPERTY DUE TO THE NEGLIGENCE OF CUSTOMER, OR ITS EMPLOYEES OR AGENTS IN CONNECTION WITH THE GOODS.
10. Compliance with Laws
Both parties shall comply in all respects with any and all federal, state and local environmental and pollution laws, rules, regulations and ordinances of any nature whatsoever (including without limitation laws, rules and regulations promulgated by the United States Environmental Protection Agency and Food and Drug Administration) relating to the Goods (the “Environmental Requirements”). Each party, at such party’s own sole cost and expense, shall (i) obtain such permits and licenses as may be required in connection with the Goods (and shall maintain such records as may be required by any Environmental Requirements); and (ii) ensure that the Goods and all accessories, chemicals and solutions used in connection therewith shall conform to the Environmental Requirements.
11. Potentially Harmful Goods or Materials
Any Goods sold that are deemed dangerous or hazardous will be packaged, marked, shipped and otherwise identified by Axenic in compliance with all federal, state and local laws and regulations. If applicable, Material Safety Data Sheets, including warning and safety and health information concerning the Goods, may be furnished to Customer in connection with the Agreement. Customer agrees to disseminate such information so as to give warning of possible hazards to persons Company can reasonably foresee may be exposed to such hazards, including but not limited to Customer’s employees, agents, contractors and customers. Customer and its employees represent and warrant that they shall review all documentation provided with the Goods thoroughly in order to familiarize Customer with potential hazards or other dangers. Customer assumes the complete risk of using the Goods to perform operations not approved or recommended by Axenic.
12. Applicable Law
The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any provisions regarding choice of law. THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS. Any dispute or issue between the parties arising hereunder or in connection herewith shall be commenced and prosecuted in its entirety in any state or federal court in Lake County, Illinois, and each party consents to personal and subject matter jurisdiction and venue in such courts and waives and relinquishes all right to attack the suitability or convenience of such venue or forum by reason of their present or future domiciles, or by any other reason. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR FORUM TO WHICH THEY MAY BOTH BE PARTIES, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THE AGREEMENT, THE BREACH OF THE AGREEMENT, OR WITH RESPECT TO ANY MATTER OR DISPUTE BETWEEN THEM.
13. Export Control
The Goods are sold for use and consumption within the United States only. Any subsequent export, transfer, resale or other disposition of the Goods from the United States must be made in accordance with applicable law. Diversion contrary to United States law is strictly prohibited. In furtherance hereof, Customer shall (a) comply with all applicable export/export control laws, rules and regulations of the United States and any other foreign countries, governments, agencies or authorities (collectively, the “Laws”), and (b) not export or re-export the Goods in violation of any such Laws, or without all necessary authorizations/licenses.
14. No Resale
All purchases are strictly for use by the Customer itself and its affiliates. No Goods purchased hereunder may be resold.
Customer agrees not violate any applicable anti-bribery laws (such as the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, or the anti-bribery laws of any other relevant jurisdiction) and to immediately inform Axenic of any possible violation of any anti-bribery laws. Customer shall maintain accurate records regarding the Agreement, and make such records available to Axenic upon request. If requested, Customer shall acknowledge and certify by separate certification, Customer’s compliance with this paragraph, anti-corruption laws, and Axenic’s anti-corruption policies. Customer acknowledges a breach of the obligations described in this paragraph constitutes a material breach of the Agreement and entitles Axenic to, without prejudice to any other rights or remedies terminate the Agreement immediately.
If any provision of the Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall continue in full force and effect. Neither party’s delay or failure in enforcing any right or remedy afforded under this Agreement or by law shall prejudice or operate to waive that right or remedy or any other right or remedy which it may have available; nor shall any such failure or delay operate to waive either party’s rights to any available remedies due to a future breach of the Agreement, whether of a like or different character. No amendment, modification, or waiver of the provisions of the Agreement shall be valid or binding on either party unless it is in writing and signed by Axenic. All notices, requests, demands and other communications under the Agreement shall be given in writing and shall be delivered to such person or address as each party may from time to time furnish in writing to the other party.