Terms and Conditions
Customer acknowledges and agrees that these terms and conditions (the “Conditions”) shall govern the purchase of any and all products of Qualyst, Inc. by Customer (“Products”). Customer acknowledges that the Products may be subject to one or more issued or pending US patent applications and corresponding foreign equivalents owned by Qualyst, and Customer agrees to adhere to any applicable license, if any, accompanying the Products or otherwise made available by Qualyst. In the event of a conflict, a written contract signed by both Qualyst and Customer takes precedence over these Conditions.
Payment is due thirty (30) days after the date of invoice by Qualyst, payable in U.S. Dollars. Each invoice shall cover the purchase price of the Product(s) ordered, plus any applicable taxes, duties or tariffs, and any applicable shipping, handling or insurance charges incurred upon shipment. Prices are subject to change from time to time without notice. Any payments not made within the thirty (30) day period following invoice will be subject to an interest charge of one and a half percent (1.5%) per month or the maximum rate allowed by law, whichever is less. Customer shall be responsible for Qualyst’s reasonable costs, including attorney’s fees, incurred in connection with collecting any overdue amounts owed hereunder by Customer. All fees paid hereunder are non-refundable
All sales shall be F.O.B. Qualyst’s shipping point. Qualyst reserves the right to ship Products in installments, all such installments to be separately invoiced and paid for when due. Upon receipt, Customer must inspect all aspects of the shipment and notify Qualyst in writing of any inaccuracy or defects. Such notification must be received by Qualyst within five (5) days after receipt by Customer, at which time the shipment shall conclusively be deemed to conform to these Conditions and to have been irrevocably accepted by Customer. As Customer’s sole remedy, Qualyst shall, at its sole discretion, either replace or repair any defective Product at Qualyst’s expense or refund the purchase price.
The purchase of Products by Customer conveys only the non-transferable right to use the quantity of Products purchased by Customer in compliance with the applicable intended use statement, limited use statement or limited label license, if any, in or on the label or other documentation accompanying the Products or otherwise made available by Qualyst. No right to resell, reproduce, reverse-engineer or redistribute the Products, or any portion of them, or to use the Products to perform experiments on behalf of third parties without the express written consent of Qualyst, is conveyed hereunder. All rights in any patents, trade secrets, copyrights, trademarks and other worldwide intellectual property rights applicable to the Products or the specifications, designs, calculations, methodologies, descriptions and other documentation (“Materials”) provided in connection with the Products shall be the sole property of Qualyst, with full and unrestricted rights of ownership and use vested in Qualyst or any third party who has exclusively licensed its rights to Qualyst.
Customer assumes all risk and responsibility in connection with the receipt, use, storage, handling, transfer or other disposal of the Products, including, without limitation, taking all precautions to minimize health or environmental risk, in a manner consistent with best industry practices. Certain Products may present flammable, toxic, biological or other hazards. Customer acknowledges that the absence of a warning label will not be construed as an indication that a Product is safe. Some Products contain materials of animal or human origin, and should be treated as potentially hazardous. Products should only be handled and used by qualified personnel familiar with handling procedures and precautions for biohazards and trained in proper laboratory procedures. Customer represents that it is familiar with, and shall utilize, appropriate biohazard protocols. Customer shall comply with all applicable laws and regulations in connection with its use, handling, storage and disposal of the Products.
The Products are explicitly for research purposes only, and Customer shall not use Products for clinical or diagnostic applications. Customer agrees to use its best efforts and to take all reasonable steps to safeguard the Product to ensure that no unauthorized person shall have access thereto and that no unauthorized use, publication, disclosure or distribution in whole or in part, in any form, shall be made. Customer acknowledges that the Product and its use may be covered under both US and international patents, patent applications, and trademarks owned or controlled by Qualyst, and that unauthorized use is harmful to Qualyst, to any third party who has exclusively licensed its rights to Qualyst, and to Qualyst’s licensees.
QUALYST SUPPLIES THESE PRODUCTS WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SUITABILITY, PRODUCTIVITY, DURABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, USE OR NON-INFRINGEMENT.
IN NO EVENT SHALL QUALYST BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST REVENUE OR PROFIT), whether based upon warranty, contract, tort (including negligence) or strict liability arising in connection with the sale or the failure of Qualyst products to perform in accordance with the stated specifications, EVEN IF QUALYST HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. In any event, Qualyst’s liability hereunder shall not exceed the amount actually received by Qualyst from Customer for any Product giving rises to any claim against Qualyst or its affiliates, successors or assigns.
From time to time Qualyst may, in its sole discretion, advise Customer of updates, upgrades, enhancements or improvements to the Product (collectively, “Enhancements”), and may license Customer to use such Enhancements upon payment of prices as may be established by Qualyst from time to time. All such Enhancements to the Product provided to Customer shall also be governed by these Conditions.
These terms and conditions shall be governed and construed in accordance with the laws of the State of North Carolina. All jurisdiction and venue shall lie in Wake County, North Carolina, including the U.S. Federal Courts applicable to Wake County, North Carolina. All terms and conditions of this Agreement are severable. If any term or provision, or any portion thereof, of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions shall remain in effect.
Customer acknowledges that is has read and agrees to be bound by these Conditions. Questions about these Conditions should be directed to Qualyst at 1-877-QUALYST.