1. DEFINITIONS: As used herein, the following terms shall have the meanings specified below:
“Seller” means Xenics NV, acting through its duly authorized representative Xenics USA, Inc.
“Buyer” means the individual or entity (corporation, LLC, partnership) acting through its duly authorized agent, procuring or proposing to procure goods or services articles under this agreement.
“Articles” means any products or services the procurement of which is contemplated by this Purchase Order (also referred to as “order”)
2. APPLICATION: The terms and conditions contained herein apply to any resulting order from Buyer to Seller. No changes to these terms and conditions shall be binding unless specifically agreed to in writing by the Seller or by Xenics USA, Inc.
3. PRICE: Seller shall furnish the goods or services covered by this Purchase Order in accordance with the prices and delivery schedule stated on the face hereof. All shipping costs shall be borne by the Buyer.
4. TAXES: In addition to the agreed price, any and all taxes (including sales taxes and value added taxes but not including income or excess profit taxes) which may be imposed by any taxing authority, arising from the sale, delivery, or use of the Articles, for which Seller or its agent may be held responsible for collection or payment (either on its own behalf or that of Buyer), shall be paid by Buyer to Seller upon Seller’s demand. Buyer may provide Seller with an appropriate tax exemption certificate acceptable to the taxing authorities.
5. DELIVERY AND SHIPMENT: Delivery shall be Ex-Works Xenics Belgium and imported via Xenics USA. Buyer shall pay for shipment from Seller’s manufacturing facility in Belgium, although all risk of loss or damage shall remain with the Seller until receipt by the Buyer. Upon delivery all risk of loss or damage shall transfer to buyer. Seller will select the method of shipment unless Buyer does so in writing at least ten (10) days prior to scheduled delivery. All articles shall be packaged, marked, and otherwise prepared in accordance with standard commercial practices for domestic shipment in the US or Canada, as appropriate.
6. INVOICES: Seller shall submit invoices in electronic format and, if Buyer wishes, in duplicate via US Postal Services after each shipment made, milestone completion, or service provided under this order. Payment is due and payable in full thirty (30) days from date of invoice. Interest at the rate of 1.5% per month will be assessed on any balance unpaid after 30 days.
7. INSPECTION AND ACCEPTANCE: Buyer may have fifteen days from the delivery of goods or services to accept or object to the same. If buyer does not notify Seller or Xenics USA, Inc. in writing with such fifteen (15) day period, buyer will be deemed to have inspected and accepted the goods and services.
8. PATENT AND OTHER INTELLECTUAL PROPERTY RIGHTS: Unless otherwise specified in this order, no patent or other intellectual property rights, title, or license shall accrue to Buyer. Seller makes no representation or warranty that Articles delivered under this order are free from infringement of any patent or other intellectual property right not owned by the Seller or under which the Seller has no license.
9. WARRANTIES: Seller warrants its product and services to be free from defects caused by faulty material or poor workmanship, for a period of two (2) years after delivery except for the sterling cooler warranty which is limited to 3,000 hours or 2 years whichever comes first. THE WARRANTIES STATED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER, AND SELLER NEITHER AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY, NOR ASSUMES SAME. BUYER EXPRESSLY WAIVES ANY RIGHT, CLAIM OR CAUSE OF ACTION THAT MIGHT OTHERWISE ARISE OUT OF PURCHASE AND USE OF SELLER’S PRODUCTS OR SERVICES. NO PRODUCT OR SERVICE IS WARRANTED TO BE MERCHANTABLE OR FIT FOR ANY PARTICULAR USE OR APPLICATION. The warranty is void if the buyer damages the Article due to modification, processing, or integration with other items. Seller’s maximum liability under this warranty is limited to the obligation to replace or, at its sole option, to refund to Buyer the purchase price.
10. INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES-RELIEF FROM LIABILITY: Seller shall not be liable for INCIDENTAL, SPECIAL or CONSEQUENTIAL damages of any nature with respect to any products sold or delivered, any service rendered, or any failure to meet delivery schedules. In no event will Seller be liable under the terms of sale beyond the total consideration actually received by Seller from the order.
11. EXCUSABLE DELAYS: Seller shall not be liable for delay in delivery or failure to manufacture or failure to complete performance of services attributable to causes beyond its control or occasioned without its fault or negligence. In the event of any such delay or failure, the date of delivery shall be deferred for a period equal to the time lost by reason of the delay or failure.
12. APPLICABLE LAW: This order shall be construed and all disputes hereunder shall be settled in accordance with the laws of the Commonwealth of Massachusetts, and the parties agree to the exclusive jurisdiction of the courts sitting in Massachusetts for the resolution of any dispute. The prevailing party in any dispute shall be entitled to recover from the non-prevailing party its costs and expenses in enforcing its rights hereunder.