Please Read Carefully! This Document Contains Very Important Information About Your Rights and Obligations, as well as Limitations and Exclusions that may Apply to You.
This Agreement contains the terms and conditions that apply to your purchase from the Agela entity named on the invoice ("Agela") that will be provided to you ("Buyer") on orders for chromatography columns and/or media, related products and/or services and support sold outside China, By accepting delivery of the chromatography columns and/or media, other products and/or services and support described on that invoice, Customer agrees to be bound by and accepts these terms and conditions. THESE TERMS AND CONDITIONS APPLY (i) UNLESS THE CUSTOMER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH Agela, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (ii) UNLESS OTHER Agela STANDARD TERMS APPLY TO THE TRANSACTION. These terms and conditions are subject to change without prior written notice at any time, in Agela 's sole discretion.
Performance by Agela is expressly made conditional on Buyer’s assent to the terms and conditions of this order acknowledgement. Buyer agrees to these terms and conditions which shall prevail over any inconsistent provisions in any form or other paper submitted by Buyer. Any additional or different terms in any Buyer request for quotation, acknowledgment, commencement, or purchase order shall constitute a counteroffer and such counter offer shall not be accepted by Agela without written approval by Agela. The provisions of any existing written contract between Agela and Buyer for the same goods or services shall take precedence over any inconsistent terms or conditions contained in this Order Acknowledgement from Agela. Agela may, from time to time, change or supplement these terms and conditions.
These terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for product(s) or services and support that are subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Customer and Agela.
All purchases are subject to Agela approval not withstanding prior payments and, if not in accordance with the specifications, may, at Agela sole option, be returned to Agela. Agela reserves the right to change product specifications, quantities, designs or prices without notice and without liability for such changes.
Buyer may test any product provided by Agela for conformation to product specifications. Product specifications will be provided by Agela with each HPLC or SPE column or upon written request for other products. Buyer has thirty (30) days to conduct acceptance testing and notify Agela of any non-conformities. Failure of the Buyer to conduct acceptance testing and notify Agela will be deemed acceptance of the product by the Buyer. In the event of a non-conformity, Agela will repair, replace and / or credit the non-conforming item, at Agela’s discretion. In the event of a repair or replacement, Buyer agrees to follow all of Agela procedures .
Any goods shipped by Agela in excess of the quantity designated in any Buyer Purchase Order or tolerance from quantity previously agreed to in writing may be returned by Agela at Agela’s sole option . Buyer agrees to give reasonable notification to Agela that the goods in question are being returned.
If Buyer wishes to change Buyer’s order, Buyer shall provide the following information to their Technical Representative: Order or confirmation number (beginning with "E"), along with the information to be changed, i.e., quantity and part numbers you wish to add and/or delete, billing or shipping address, purchase order, etc. If Buyer does not have a confirmation order, Buyer’s purchase order number, an approximate date of purchase and the billing or shipping name and address may allow Agela to locate Buyer’s order. If items ordered have been manufactured or are already in transit, changes will be regarded as an "Order Cancellation".
The price(s) set forth in any Agela Order Acknowledgement are firm and shall not be changed without the prior written consent of Agela. If no price is specified in this Purchase Order, the goods shall be invoiced at the current list price.
Payment will be due net thirty (30) days from receipt on approved credit. Where other payment terms are specified on the Order Acknowledgement, payment shall be made in accordance with those terms and conditions. If your credit has not been established with Agela, terms may be payment in advance or C.O.D.
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for three (3) days following written notice thereof. Prices are subject to change without notice.
Cancellation of orders is subject to approval by Agela. A minimum of 40% restocking/service charge will be applied.
Shipment of the goods shall be made in accordance with customary shipping practices for such goods. Unless otherwise stated in the Order Acknowledgement, no charge will be allowed for packing, boxing, cartage or insurance and Buyer shall absorb and pre-pay all shipping and insurance charges. Goods ordered in error or duplicated because mailed-in order and not clearly marked "CONFIRMING" will be subject to a 40% restocking charge, if approved by Agela.
All shipments are according to EXW Shipping point. Items are shipped by a fast/standard method unless otherwise specified, with shipping charges and insurance prepaid and added as a separate charge on your invoice. Buyer shall notify Agela immediately of any situation which may delay or threaten to delay the timely acceptance of services and / or receipt of goods. Agela, at its option, may cancel all or any portion of this Order Acknowledgement without liability. Acceptance of all or part of the goods, or payment therefore, or failure to notify Buyer promptly shall not waive or affect Agela’s right to cancel the order or recover damages.
SERVICE AND SUPPORT
Agela endeavors to provide the best customer and technical telephone support in the chromatography and separation science industry. For end-user Customers, Agela promises that its support people will attempt to handle over the email or telephone any problem involving Agela products. However, Agela's support people may not be able to understand or resolve any given problem. Service offerings may vary from product to product. Agela has no obligation to provide service or support until Agela has received full payment for the product or service/support contract for which service or support is requested. Phenomenex will provide service and support to Buyer in the United States in accordance with the terms and conditions of the services and support policies and conditions in effect on the date purchased.
RISK OF LOSS
Unless otherwise specified in this Order Acknowledgement, risk of loss will pass to Buyer only after shipment of the goods by Agela. Should Buyer receive damaged goods, it is imperative that Buyer save all packing materials for inspection by the carrier. Once the goods are turned over to the carrier by us, they become Buyer’s responsibility. While Agela will assist Buyer, all claims should be reported to the carrier immediately. Failure to do so makes Buyer, liable for payments of those goods should damage claims be rejected by the carrier. All claims must be made within 7 days of receipt of goods.
The products offered are for laboratory or manufacturing use only. They are not intended for medicinal or food use. Agela assumes no responsibility if these products are used for medicinal or food purposes or are misused in any way. Agela products are not intended for clinical use. While clinical applications may be shown, these products are not tested for clinical applications.
The products offered on this website are not intended for clinical use. Because they are not intended for clinical use, no claim or representation is made or intended for their clinical use (including, but not limited to diagnostic, prognostic, therapeutic or blood banking).
Agela warrants that Agela holds clear title to all products transferred to Buyer under this agreement and is under no legal restraint which would prohibit transfer of possession or title to Buyer.
Agela warrants that the Products will operate or perform substantially in conformance with Agela’s published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the Product’s documentation, published specifications or package inserts. If a period of time is not specified in Seller's product documentation, published specifications or package inserts, the warranty period shall be ninety (90) days for (the "Warranty Period").
Agela agrees during the Warranty Period, to repair, replace or refund at Agela’s option, provided that Buyer shall:
· (a) promptly notify Agela in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the defect.
· (b) For columns, they must be tested upon receipt and all deficiencies must be reported to Agela no later than 15 days after the date of receipt of the column.
· (c) After Agela's review, Agela will provide Buyer with a Return Authorization ("RA"), which may include biohazard decontamination procedures and other product-specific handling instructions, then, if applicable, Buyer may return the defective Products to Agela with all costs prepaid by Agela.
Shipment to Buyer of repaired or replacement Products shall be made in accordance with the Delivery provisions of the Terms and Conditions of Sale.
Warranty Exclusion: In no event shall Agela have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of:
· (i) normal wear and tear,
· (ii) accident, disaster or event of force majeure,
· (iii) misuse, fault or negligence of or by Buyer,
· (iv) use of the Products in a manner for which they were not designed, such as, but not limited to
o Removal of column end-fittings automatically voids column warranty.
o Column performance warranty is limited to the conditions of the original test chromatogram.
o Chemical damage to the packing material due to operation at incorrect chemical conditions, temperatures, or pressures.
o Failure due to high backpressures caused by improper solvent or sample filtration practices causing particulate build-up or precipitation or sample fouling in the column or end-fitting.
o Incorrect selection of packing material made by Buyer for their particular use or incompatibility of equipment, etc.
· (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, and
· (vi) improper storage and handling of the Products.
Notwithstanding the foregoing, Products supplied by Agela that are obtained from an original manufacturer or third-party supplier are not warranted by Seller, but Seller agrees to assign to Buyer any warranty rights in such Product that Agela may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.
Buyer shall not assign, in whole or in part, to any person, firm, corporation or governmental agency, its rights, interests or obligations under any Agela Order Acknowledgement without prior written approval from Agela.
Buyer agrees to indemnify Agela and its customers and to hold Agela and its customers harmless against all liability and expenses, including counsel fees, if Buyer fails to comply with the all applicable laws, rules, and regulations, including those of the People Republic of China, , the United States, and any and all other jurisdictions globally, which apply to Buyer’s business activities in connection with this terms and conditions and Purchase Order.
Without limiting any provision in this terms and conditions, Buyer specifically agrees to the following:
Buyer represents and warrants to Seller that Buyer is familiar with and shall comply with any/all local, national, and other laws and regulations of any/all jurisdictions globally relating to anti-corruption, anti-bribery, extortion, kickbacks, or similar matters which are applicable to Buyer’s business activities in connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997 (collectively, “Anti-Corruption Laws”).
Buyer further represents and warrants to Seller that Buyer will take no action that will cause Buyer or Seller to violate Anti-Corruption Laws.
It is the intent of Buyer and Seller, and Buyer represents and warrants to Seller, that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Buyer or for Seller or which would otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business, or any improper advantage, with respect to any of Buyer’s activities related in any way to this Contract, including without limitation any payment of money or provision of anything of value to any employee of any current or potential customer in order to secure a sale or other business advantage.
2) EXPORT RESTRICTIONS AND CONTROLS
Buyer represents and warrants to Seller that Buyer shall comply with all local, national, and other laws and regulations of all jurisdictions globally relating to export controls and similar matters which are applicable to Buyer’s business activities in connection with this Contract, including, but not limited to, the laws/measures of the United Nations, United States (e.g., the Export Administration Regulations administered by the United States Commerce Department’s Bureau of Industry and Security, the International Traffic in Arms Regulations, and the regulations and sanctions administered by the United States Treasury Department’s Office of Foreign Assets Control), Member States of the European Union, United Kingdom, China, and Singapore (collectively, “Export Laws”), and that Buyer will take no action that will cause Buyer or Seller to violate any such laws.
Buyer specifically represents and warrants to Seller that it is aware that products and technical data supplied by Seller are subject to Export Laws, and that Buyer will comply with all applicable restrictions regarding exports, re-exports and transfers, including obtaining any required U.S. or other country licenses, authorizations, and/or approvals.
Buyer further represents and warrants to Seller that Buyer will provide Seller with the information necessary for Seller to seek new export authorizations and/or to ensure compliance with Export Laws, that Buyer will inform each of its customers (where the circumstances suggest the customer may be exporting) of applicable restrictions on exports, re-exports, or transfers at the time Buyer resells or otherwise disposes of any product or technical data supplied by Seller to such customer, and that Buyer will maintain controls as appropriate to comply with Export Laws.
Agela may, in addition, cancel this Purchase Order in whole or in part, without further liability to Seller for failure to comply with this provision.
Neither party shall be liable to the other for failure to perform or deliver when and as specified if such failure to perform or deliver is caused by war, fire, flood, strike, labor dispute, accident, epidemic, riot, act of governmental authority, or other contingencies beyond the control of the non-performing party, and which interferes with the party’s ability to perform its obligations hereunder. Any deliveries suspended under this paragraph may be canceled without liability.
The parties understand and agree that neither these Terms and Conditions nor any Agela Order Acknowledgement shall create rights or obligations of exclusivity inuring to the benefit of Buyer. Nothing in these Terms and Conditions or in any Agela Order Acknowledgement shall limit the rights of Agela to, at all times, provide goods and services to other buyers.
Buyer is an independent contractor and is not an employee, agent, officer, joint venturer or partner of Agela. Buyer is not authorized to assume or create any obligations or responsibilities, express or implied, on behalf of or in the name of Agela. It is understood that the employees, methods, facilities and equipment of Buyer shall at all times be under its exclusive direction and control.
LIMITATION OF LIABILITY
IN NO EVENT WILL AGELA BE RESPONSIBLE OR LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST PROFITS, OR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR CONTINGENT DAMAGES ARISING FROM OR RELATING TO THIS CONTRACT, EVEN IF AGELA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AGELA’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING FOR ANY LIABILITY ON ACCOUNT OF A CLAIMED DEFECT IN ANY PRODUCT DELIVERED BY AGELA, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY BUYER ON WHICH THE CLAIM IS BASED.
These Terms and Conditions and any contract by any Purchase Order or Order placed hereunder shall be governed by the laws of the People Republic of China without regard to it’s choice of law rules. Jurisdiction to resolve any dispute regarding these Terms and Conditions and/or Purchase Order. any dispute, controversy or claim arising out of or relating to these Terms and Conditions and/or Purchase Order, or the breach, termination or invalidity thereof (“Dispute”), shall be submitted to the China International Economic and Arbitration Commission for arbitration which shall be conducted in accordance with the Commission’s arbitration rules in force at the time of arbitration and as may be amended by the rest of this clause: the place of arbitration shall be in Beijing and the language of arbitration shall be English. The arbitral award shall be final and binding on both parties. nothing in this clause shall prejudice the right of any party to:
(a) seek preliminary injunctive relief from any court of competent jurisdiction pending the constitution of the arbitral tribunal; or
(b) bring proceedings to enforce a settlement agreement or binding determination of any Dispute between the parties in accordance with the foregoing provisions of this clause.
If any provision or any portion of this Purchase Order is determined to be invalid or unenforceable, the remaining provisions of this Purchase Order shall not be affected thereby, and shall be binding upon Agela and Buyer, and shall be enforceable as though the invalid or unenforceable provision, or any part thereof, were not contained in this Order Acknowledgement.
Buyer (jointly and severally to the extent legally permissible and applicable) will indemnify and hold harmless Seller from and against all losses, claims, damages, or liabilities and related reasonable, documented and out-of-pocket expenses, including attorney costs, charges and disbursements to which such Seller may become subject or which may be asserted against such Seller by any third party, insofar as such losses, claims, damages, penalties, expenses or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect thereof) arise out of, in any way relate to, or result from the execution, delivery, or performance by the parties hereto of their respective obligations under this Contract, or any actual or prospective claim, litigation, investigation, or proceeding relating to any of the foregoing, whether based on contract, tort, or any other theory and regardless of whether brought by a third party and regardless of whether any Seller is a party thereto, and to reimburse Seller upon its demand, for any attorney costs or other expenses incurred in connection with investigating, preparing to defend or defending any such loss, claim, damage, liability, action, or claim.
All non-public, confidential or proprietary information of Agela, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Agela to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Agela in writing. Upon Agela's request, Buyer shall promptly return all documents and other materials received from Agela. Agela shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
DISCLOSURE BY BUYER
Buyer agrees that should it learn or have reason to know of any violation, possible violation, or suspected violation of any law or regulation applicable to Buyer’s activities related to this Contract, including but not limited to Anti-Corruption Laws and Export Laws, or of any government investigation into the same, Buyer shall immediately use the Danaher Integrity & Compliance Program Helpline portal, available at www.danaherintegrity.com, to report such matter to Seller. Buyer shall cooperate fully and completely with Seller in connection with any Seller efforts to investigate or review records resulting from such disclosures.
To the extent permitted by applicable laws and regulations, Buyer agrees that Seller shall have reasonable access to Buyer’s books and records and shall have the right to audit them on a periodic basis to ensure Buyer’s compliance with all laws and regulations applicable to Buyer’s activities related to this Contract, including but not limited to Anti-Corruption Laws and Export Laws, and with the provisions of this Contract. Buyer represents and warrants that it will keep complete and accurate records of all transactions and expenses related to its business under this Contract. Such records will include in reasonable detail the purpose of each expense and the receipt and distribution of assets. In line with the Termination provision below, Buyer’s failure to participate in any audit pursuant to this Contract will be grounds for termination of Buyer.
CERTIFICATION AND TRAINING
Buyer shall provide annual certifications of compliance with all laws and regulations applicable to Buyer’s activities related to this Contract in the form provided from time to time by Seller, including but not limited to Anti-Corruption Laws and Export Laws. Buyer shall participate in Anti-Corruption Laws and Export Laws trainings offered by Seller as Seller may direct from time to time. Buyer also represents and warrants that it has implemented and will continue to maintain a compliance program to provide appropriate training on Anti-Corruption Laws and compliance with applicable laws to its owners, directors, officers, and employees and has and will continue to provide appropriate training to its agents, resellers, representatives, consultants, and any other persons engaged in the performance of this Contract. Buyer represents and warrants that it will conduct thorough pre-retention due diligence on all agents, sub-distributors or resellers, and any other parties to which it provides discounts or pays commissions or referral, marketing, or other fees related to its business under this Contract, and that it has no reason to believe that any of its agents, sub-distributors, resellers, representatives, consultants, or any other persons retained or paid by it in connection with this Contract have or will violate Anti-Corruption Laws and Export Laws.
To the extent permitted by applicable law, Seller may withhold payments under this Contract, and terminate this Contract immediately, if it believes, in good faith, that Buyer has breached any provision of this Contract or has violated or caused Seller to violate any laws or regulations applicable to Buyer’s activities related to this Contract, including but not limited to Anti-Corruption Laws and Export Laws. Seller shall not be liable to Buyer for any claims, losses, or damages related to Seller’s decision to exercise its rights under this provision.
The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefore.
This Order Acknowledgment may include additional terms as Agela may make a part hereof by attachment or incorporation by reference when specified on the face hereof.
Buyer is and shall perform this Agreement as an independent contractor and as such, shall have and maintain complete control over all of its employees and operations. Neither Buyer nor any person employed by it shall be, represent, act, purport to act, or to be deemed to be an agent, representative, employee or servant of Agela.
EXCUSE OF PERFORMANCE
The obligation of Agela to provide products and services pursuant to purchase order(s) may be suspended in the event of : (i) war, riot, fire, explosion, accident or flood; (ii) lack of adequate fuel, power, raw material, labor, containers, transportation or facilities; (iii) compliance with governmental requests, laws, regulations, orders, or other required licenses or approvals; (iv) breakage or failure of machinery or apparatus; (v) national defense requirements or any other event beyond the reasonable control of Phenomenex; (vi) labor trouble, strike or lockout, provided that Agela shall not be required to settle a labor dispute against its own best interest; (vii) any such event that prevents the delivery, transportation, or acceptance of the products or service.
Except with respect to non-payment for products or services rendered by Agela, if either party commits a material breach concerning which the other party has given written notice to the party who allegedly committed the breached these terms and conditions shall none- the-less remain in effect of a period of sixty (60) days for the breaching party to cure the breach. If the breach is so cured, this Agreement shall remain in effect. In the event Buyer fails to pay any payment when due, Agela shall notify Buyer orally or in writing of the non-payment (“Notice of Non-Payment). In the event Buyer fails to pay all sums pursuant to the Notice of Non-Payment within ten (10) days of the date of Agela having given the Notice of Non-Payment, Agela shall be entitled, at its sole election, to immediately terminate all services pursuant to these terms.
Any waiver by the Agela of any provision or condition of this Agreement shall not be construed or deemed to be a waiver of any other provisions or conditions of this Agreement, nor a waiver of a subsequent breach of the same provision or condition unless such a waiver be expressed in writing signed by an authorized representative of Agela.
These Terms and Conditions and any attached Exhibits constitute the entire agreement between Agela and Buyer regarding the above listed subject matter and supersede all prior understandings, agreements and documentation relating to the Order Acknowledgement. All previous representations or agreements are superseded and annulled. No modification of this Agreement shall be binding on Agela unless in writing and signed by an authorized representative of Agela. In the event these Terms and Conditions are attached or incorporated into a previously authorized contract, that contract will be referenced on the face of this Order Acknowledgement. These Terms and Conditions will be in full force and effect to the extent they are not inconsistent with any previously authorized contract.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Agela. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.