This Agreement contains the terms and conditions that apply to your purchase from Neoteryx ("Neoteryx") that will be provided to you ("Buyer") on orders for all Neoteryx products and/or services and support. Any terms contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Buyer’s offer, this Agreement shall be construed as a counter offer and shall not be effective as an acceptance of Buyer’s document. By accepting delivery of the Neoteryx Products, other products and/or services and support described on the invoice, Buyer agrees to be bound by and accepts these terms and conditions. THESE TERMS AND CONDITIONS APPLY (i) UNLESS THE BUYER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH NEOTERYX, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (ii) UNLESS OTHER NEOTERYX STANDARD TERMS APPLY TO THE TRANSACTION. These terms and conditions are subject to change without prior written notice at any time, in Neoteryx's sole discretion.
Performance by Neoteryx 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 Neoteryx without written approval by Neoteryx. The provisions of any existing written contract between Neoteryx and Buyer for the same goods or services shall take precedence over any inconsistent terms or conditions contained in this Order Acknowledgement from Neoteryx.
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 Buyer and Neoteryx.
All purchases are subject to Neoteryx’s approval not withstanding prior payments and, if not in accordance with the specifications, may, at Neoteryx sole option, be returned to Neoteryx at Buyer’s expense for transportation. Neoteryx 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 Neoteryx for conformation to product specifications. Product specifications will be provided by Neoteryx with each product shipment or upon written request for other products. Buyer has thirty (30) days to conduct acceptance testing and notify Neoteryx of any non-conformities. Failure of the Buyer to conduct acceptance testing and notify Neoteryx will be deemed acceptance of the Product by the Buyer. In the event that Neoteryx is notified of a non-conformity within the 30 day acceptance testing period, Neoteryx may repair, replace and / or credit the non-conforming item, at Neoteryx’s discretion. In the event of a repair or replacement, Buyer agrees to follow all of Neoteryx’s procedures and to bear the costs of returning the product to Neoteryx.
Any goods shipped by Neoteryx in excess of the quantity designated in any Buyer Purchase Order previously agreed to in writing may be returned to Neoteryx at Buyer’s sole expense. Buyer agrees to give reasonable notification to Neoteryx 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 shall provide the following: purchase order number, an approximate date of purchase and the billing or shipping name and address to allow Neoteryx 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 Neoteryx Order Acknowledgement are firm and shall not be changed without the prior written consent of Neoteryx. If no price is specified in the Purchase Order, the goods shall be invoiced at the current list price. Prices are subject to change without notice.
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 Neoteryx, terms may be payment in advance or C.O.D. All shipments are F.O.B. factory. Items are shipped by a standard method unless otherwise specified, with shipping charges and insurance prepaid and added as a separate charge on your invoice.
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 Neoteryx 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 Neoteryx does not waive by the exercise of any rights hereunder), Neoteryx shall be entitled to suspend the delivery of any Products or performance of any Services if Buyer fails to pay any amounts when due hereunder.
Cancellation of orders is subject to approval by Neoteryx. A minimum of 30% restocking/service charge will be applied.
Shipment of the Products shall be made in accordance with customary shipping practices for such Products. 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. Products ordered in error or duplicated and not clearly marked "CONFIRMING" will be subject to a 30% restocking charge, if approved by Neoteryx.
Buyer shall notify Neoteryx immediately of any situation which may delay or threaten to delay the timely acceptance of services and / or receipt of Products. Neoteryx, at its option, may cancel all or any portion of this Order Acknowledgement without liability. Acceptance of all or part of the Products, or payment, or failure to notify Buyer promptly shall not waive or affect Neoteryx’s right to cancel the order or recover damages.
Neoteryx endeavors to provide top notch customer and technical telephone support. Neoteryx promises that its support staff will attempt to handle over the telephone any problems involving Products. However, Neoteryx's support staff may not be able to understand or resolve any given problem. Service offerings may vary from product to product. Neoteryx has no obligation to provide service or support until Neoteryx has received full payment for the product or service/support contract for which service or support is requested. Neoteryx will provide service and support to Buyers in accordance with the terms and conditions of the services and support policies and conditions in effect on the date purchased.
No returns will be accepted without prior authorization, and are subject to approval by Neoteryx. If, for any reason, Buyer finds it necessary to return Products, please contact a Technical Representative for forwarding instructions. Neoteryx is not liable for Products returned without authorization. Returns must be sent through a traceable carrier.
Unless otherwise specified in this Order Acknowledgement, risk of loss will pass to Buyer only after shipment of the Products by Neoteryx. Should Buyer receive damaged Products, it is imperative that Buyer save all packing materials for inspection by the carrier. Once the goods are turned over to the carrier, they become Buyer’s responsibility. All claims should be reported to the carrier immediately. Failure to do so makes Buyer, liable for payments of those Products should damage claims be rejected by the carrier. All claims must be made within 7 days of receipt of Products.
With respects to Products regulatory approved for clinical and diagnostic use, any decisions relating to such treatment and use shall be at the risk of the Buyer. Products may be used in clinical diagnostic laboratory systems after the laboratory has validated their complete system as required by the Clinical Laboratory Improvements Amendments of 1988 (CLIA ’88) regulation in the U.S. or equivalent in other countries.
Neoteryx warrants that Neoteryx 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. Neoteryx products are warranted to meet the stated performance and quality and to be free of defects in material and workmanship. However, no warranty is made, nor does Neoteryx assume liability, if misused. NO OTHER WARRANTY OR REPRESENATI0N IS IMPLIED OR EXPRESSED BY NEOTERYX FOR ITS PRODUCTS WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER. NEOTERYX SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COMPENSATORY DAMAGES ARISING FROM USE OF, OR IN CONJUNCTION WITH, ITS PRODUCTS. The maximum liability that can be assumed by Neoteryx for breach of warranty shall be the invoice price of the product.
The information published by Neoteryx is, to the best of its knowledge, correct and accurate but is not guaranteed to be so. Neoteryx assumes no responsibility with respect thereto and has not verified the values or specifications stated experimentally and does not guarantee their accuracy. The sale of any product by Neoteryx does not waive any patent restrictions connected with those products.
Neoteryx will repack, replace, or refund charges on any product (at Neoteryx’s discretion), at no cost if a product fails to perform satisfactorily. Products being returned must have prior return authorization granted by Neoteryx. Defective products must be accompanied by a written explanation of failure. Approval is subject to the following exclusions:
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Neoteryx may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
Buyer and / or contractor will indemnify, defend and hold harmless Neoteryx and its customers from and against all liabilities, losses and expenses, including counsel fees and disbursements, arising from the breach of any of these Terms and Conditions, or for personal injury or property damage relating directly or indirectly to the performance of any goods or service provided.
Buyer shall indemnify and protect Neoteryx against all liability or loss for injury or damages to persons or property, including counsel fees and expenses, arising out of damages or injuries that result to Buyer, Buyer’s employees, agents or in any way under the control of Buyer, on Neoteryx premises, either leased or owned. Whenever Buyer enters upon Neoteryx premises, Buyer shall furnish a certificate of insurance reflecting insurance coverage in forms and amounts required by Neoteryx. For purposes of this paragraph, the term Buyer shall be deemed to include a contractor.
Buyer agrees to indemnify Neoteryx and its customers and to hold Neoteryx and its customers harmless against all liability and expenses, including counsel fees, if Buyer fails to comply with the applicable laws, regulations and ordinances, Neoteryx may, in addition, cancel this Purchase Order in whole or in part, without further liability to Neoteryx for failure to comply with this provision.
Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability with financially sound and reputable insurers acceptable to Neoteryx and which applies to all Neoteryx-supplied Components delivered during the Term. Upon Neoteryx’s request, Buyer shall provide Neoteryx with a certificate of insurance from Buyer's insurer evidencing the insurance coverage specified in this Agreement. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogration against Neoteryx’s insurers and Neoteryx.
The parties understand and agree that neither these Terms and Conditions nor any Neoteryx Order Acknowledgement shall create rights or obligations of exclusivity inuring to the benefit of Buyer. Nothing in these Terms and Conditions or in any Neoteryx Order Acknowledgement shall limit the rights of Neoteryx to, at all times, provide products and services to other buyers.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
These Terms and Conditions and any contract by any Purchase Order or Order placed hereunder shall be governed by the laws of the State of California without regard to its choice of law rules. Jurisdiction to resolve any dispute regarding these Terms and Conditions and/or Purchase Order is held by the state courts of the State of California located in the County of Los Angeles. Should the matter require federal jurisdiction, then jurisdiction shall be held by the federal courts located in the Central District of California.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
All nonpublic, confidential or proprietary information of Neoteryx, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Neoteryx 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 Neoteryx in writing. Upon Neoteryx's request, Buyer shall promptly return all documents and other materials received from Neoteryx. Neoteryx 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.
Should Buyer use a subcontractor or consultant for any portion of its performance under this Agreement, Buyer will require such subcontractor or consultant to execute a confidentiality and nondisclosure undertaking in substantially the same form as set forth in this section. Buyer agrees that under no circumstances will Buyer utilize any plans, drawings, sketches, specifications or any other writings given to them by Neoteryx for any purpose other than expressly agreed upon and stated in the Order Acknowledgement. In addition, all transactions between Neoteryx and Buyer will be treated as confidential. Buyer, without express written permission from Neoteryx will, not make any news release, public announcement, denial or confirmation of any dealings Buyer has with Neoteryx.
Buyer acknowledges and agrees that: (a) except to the extent provided in a separate written agreement between Buyer and Neoteryx, Neoteryx will retain all intellectual property rights used to create, embodied in, used in and otherwise relating to the Products and any of their component parts (collectively referred to as “Neoteryx’s Intellectual Property Rights”); (b) any and all Neoteryx’s Intellectual Property Rights are the sole and exclusive property of Neoteryx; (c) Buyer shall not acquire any ownership interest in any of Neoteryx’s Intellectual Property Rights under this Agreement; (d) any goodwill derived from the use by Buyer of Neoteryx’s Intellectual Property Rights inures to the benefit of Neoteryx; (e) if Buyer acquires any intellectual property rights in or relating to any product (including any Product) purchased under this Agreement (including any rights in any Trademarks, derivative works or improvements relating thereto, whether patentable or not), by operation of law, or otherwise, Buyer agrees to promptly disclose to Neoteryx such intellectual property rights and such rights are deemed and are hereby irrevocably assigned to Neoteryx, as the case may be, without further action by either Party; and (f) Buyer shall use Neoteryx’s Intellectual Property Rights only in accordance with this Agreement and instructions of Neoteryx.
Buyer will not use Neoteryx’s name in any publicity or advertising without Neoteryx’s prior written approval.
During the performance of this Order Acknowledgement and for three (3) years thereafter, Buyer will maintain books, records and other documents relevant to any work done or goods provided under this Order Acknowledgement. Neoteryx will have access to and may copy such documents for the purpose of verifying Buyer’s performance and amounts paid to Neoteryx.
Recall Notifications, if any, will be mailed to the “Ship To” address on the Order Acknowledgement.
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 Neoteryx may make a part hereof by attachment or incorporation by reference when specified on the face hereof.
The obligation of Neoteryx to provide products and services pursuant to purchase order(s) may be suspended in the event of : (i) act of God, 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 Neoteryx; (vi) labor trouble, strike or lockout, provided that Neoteryx 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, if either party commits a material breach concerning which the other party has given written notice to the party who allegedly committed the breach, these terms and conditions shall none-the-less remain in effect for 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, Neoteryx 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 Neoteryx having given the Notice of Non-Payment, Neoteryx shall be entitled, at its sole election, to immediately terminate all services pursuant to these terms.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
These Terms and Conditions and any attached Exhibits constitute the entire agreement between Neoteryx 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 Neoteryx unless in writing and signed by an authorized representative of Neoteryx. 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 Neoteryx. 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.
IF THIS ORDER IS FOR A CONSIGNMENT ORDER OR THE REPLINISHMENT OF A CONSIGNMENT STOCK, THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS ALSO APPLY:
The following paragraphs set forth the general terms and conditions under which Neoteryx shall, at Buyer’s request, provide goods on a consignment basis to Buyer. For the purposes of this Agreement, the terms “Neoteryx” and “Buyer” shall include the employees, agents, assigns, officers, directors and subcontractors of each respective party. However, to the extent Buyer’s purchase orders are inconsistent with this Agreement, this Agreement shall control the rights and remedies of the parties hereto.
Supplier shall provide products to Buyer during the term of this agreement. The products and services covered by this agreement are listed in Exhibit “A” attached hereto or previously agreed to in a separate document which is hereby incorporated by reference. During the term of this agreement, the quantities and/or materials listed in Exhibit “A” can only be modified by Neoteryx with written notification to Buyer and Buyer not objecting within ten (10) days from the mailing of such notice.
Neoteryx will ship all of the products as listed in Exhibit “A” at no charge to Buyer. Buyer shall keep these products separate and will not otherwise commingle those products with Buyer’s inventory. Buyer will have custody of the products at will and Neoteryx shall retain title to all products shipped to Buyer. Buyer may, at their discretion, use or consume the products provided by Neoteryx. Upon use or consumption of a product, Buyer will become obligated to pay Neoteryx for that product according to the terms of this Agreement. Any product used by Buyer, even if in usable condition, may not be returned to Neoteryx.
Within five (5) business days after the end of each month, Buyer will report to Neoteryx the quantities and, if applicable, the serial number of the products used during the previous month. Neoteryx will then invoice Buyer for those products.
Within ten (10) business days of the invoice date, Neoteryx will, at no cost to Buyer, replace the products used or consumed by Buyer to return the number of products to the levels agreed to in Exhibit “A”. Buyer will have custody of the products at will and Neoteryx shall retain title to all products shipped to Buyer.
Upon termination of this agreement, Buyer, at no cost to Neoteryx, agrees to return all unused products shipped under this Agreement to Buyer. Buyer will not receive a credit or other compensation for those products. In addition, Buyer, at its sole expense, shall obtain appropriate freight insurance for the return of the products. Should the quantity and types of products returned to Neoteryx be less than the quantity and types listed in Exhibit “A”, Buyer agrees to pay for those unaccounted for or missing products as though they had been consumed or used by Buyer under this Agreement.
Buyer warrants that the products provided by Neoteryx will be kept in a secure area under conditions appropriate for the products. In the event the products provided by Neoteryx while in the custody of Buyer become damaged, destroyed, lost, or are otherwise unusable or unaccounted for, Buyer agrees to pay for the product as though it was used in accordance with the WARRANTY Section above.
The price charged Buyer will be as shown in Exhibit “B” attached hereto or as agreed to in a prior written document and is incorporated by reference. In addition to the prices stated herein, Buyer will pay to Neoteryx any sales tax now or hereafter imposed by a state or municipality, based on or measured by the sale or use of material, product or services covered hereby. Supplier may in its sole discretion, adjust pricing in accordance with its published list prices.
With the exception of the first shipment, Neoteryx shall invoice Buyer for every shipment. The invoice will include, and Buyer agrees to pay, reasonable shipping and handling charges. Buyer further agrees to pay all invoices within thirty (30) days of receipt of said invoice. Interest will be charged at the legal rate for all amounts outstanding more than thirty (30) days. In addition, Buyer will be responsible for collection agency or legal fees incurred in collecting payment of an invoice. Neoteryx reserves the right to refuse to perform under this agreement should there be any balance outstanding for more than thirty (30) days. Neoteryx will not be in breach of this agreement by exercising this right. Buyer shall reimburse Neoteryx for taxes, fees, surcharges or other charges imposed by legislation of regulations enacted or promulgated after the execution date of this Agreement and levied specifically upon the transportation or packaging of the products subject to this agreement.
Neoteryx will make all reasonable efforts to meet Buyer’s requirement dates and to ship the products via Buyer’s choice of carriers. All products shall be properly labeled and packaged in accordance with applicable DOT regulations. Partial shipments will be accepted by the Buyer and will not be a breach of this agreement by the Neoteryx.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section:
Attn: David Grossman, Director of Business Development
411 Amapola Avenue
Torrance, CA 90501
To the address listed on the Order Acknowledgement.
Should either party’s address change, written notification must be sent certified mail return receipt ten (10) days in advance of when the change of address is to be in effect for purposes of this Agreement.