TERMS & CONDITIONS FOR INTERNATIONAL EQUIPMENT AND SERVICES SALES AGREEMENTS
Effective as of August 1, 2017
The Products and Services that we provide to you (our "Customer") are subject to these Terms and Conditions. The current version of our Terms and Conditions may be found on our website at (ande.com/terms-international) which we may amend or modify from time to time. If we amend or modify these Terms and Conditions we will bring it to your attention by placing a notice on the website and/or by sending you an email. Please check the Terms and Conditions periodically for changes. If you purchase a Product or use a Service in any way after a change to the Terms and Conditions becomes effective, it means you have accepted the changes.
1. Warranty and Limitation of Liability
1.1 Limited Warranty. Products- ANDE warrants that all Instruments purchased hereunder will, for a period of one hundred and eighty (180) days after delivery, meet ANDE's most recent specifications, as set forth on our website (as amended from time to time) at the time of delivery, and as determined by ANDE in its sole and absolute discretion. Products other than Instruments (and including Chips and Consumables) purchased hereunder will, for a period of ninety (90) days after delivery, meet ANDE's most recent specifications, as set forth on our website (as amended from time to time) at the time of delivery, and as determined by ANDE in its sole and absolute discretion. Information about Chip performance is set forth on our website. In the event of a Chip that fails to generate data in all lanes as determined by ANDE review, ANDE may replace the Chip in the normal course of Order processing. ANDE is not responsible for Chip failures due in whole or in part to your sample collection or handling, sample quality, sample contamination, or sample or Product or Chip storage environment or conditions. Any warranty claim for a Product must be made in writing within (30) days after the end of the warranty period. During the warranty period, ANDE's sole obligation, and your exclusive remedy shall be repair or replacement (in ANDE's sole discretion) with comparable new or reconditioned parts of the non-conforming Product.
Services - ANDE warrants that all Services will be provided in a professional and workmanlike manner by individuals with suitable skills and abilities, as determined by ANDE in its sole discretion. Services will be deemed accepted when performed. Any warranty claim for Service must be made in writing within 30 days after performance of the non-conforming Service. ANDE's sole obligation and your exclusive remedy shall be re-performance of the nonconforming Service.
1.2 Disclaimer and Limits of Liability. ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS (STATUTORY, EXPRESS, IMPLIED OR OTHERWISE) AS TO THE QUALITY, CONDITION, DESCRIPTION, MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT (EXCEPT FOR THE IMPLIED WARRANTY OF TITLE) ARE HEREBY EXPRESSLY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ANDE DOES NOT ASSUME, NOR DO WE AUTHORIZE ANY EMPLOYEE, AGENT OR OTHER PERSON TO ASSUME FOR US, ANY OTHER LIABILITY IN CONNECTION WITH OUR PRODUCTS OR SERVICES. ANDE EXPRESSLY EXCLUDES AND YOU EXPRESSLY WAIVE LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR LOSS OF PROFIT OR USE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR MULTIPLE DAMAGES, INCLUDING WITHOUT LIMITATION FOR LOSS OF GOODWILL, DATA OR EQUIPMENT OR FOR BUSINESS INTERRUPTION ARISING OUT OF THE SUPPLY OR USE OF OUR PRODUCTS, SERVICES, EQUIPMENT OR SOFTWARE OR FAILURE OR DELAY IN DELIVERING SUCH PRODUCTS, SERVICES, EQUIPMENT OR SOFTWARE WHETHER BASED ON WARRANTY, CONTRACT, TORT, FAULT OR OTHERWISE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE LIABILITY FOR A PRODUCT, SERVICE OR CONSULTATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT, FAULT OR OTHERWISE, SHALL NOT EXCEED IN THE AGGREGATE, THE AMOUNT THAT YOU PAID FOR SUCH PRODUCT, SERVICE, EQUIPMENT, SOFTWARE, OR CONSULTATION. ANDE HEREBY EXPRESSLY DISCLAIMS, AND YOU HEREBY EXPRESSLY WAIVE ANY CLAIM OF LIABILITY FOR THE PURPOSES FOR WHICH YOU USE OUR PRODUCT, SERVICE, EQUIPMENT OR, SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS.
2. Mutual Indemnifications
2.1 Your Indemnifications to ANDE. You agree to indemnify, defend and hold harmless ANDE, its Affiliates and our officers, directors, employees and agents from and against any and all costs, damages and expenses (including reasonable attorneys fees) incurred or suffered by ANDE arising directly or indirectly from any third party claims relating to: (1) the breach by you of any of your covenants, agreements, representations, warranties or other obligations in this Agreement; (2) fraud, gross negligence or intentional misconduct by you or your representatives in connection with this Agreement; or (3) any misuse or unintended use of the Products, Equipment or Software.
2.2 ANDE'S Indemnifications to You. ANDE shall defend and indemnify you, your Affiliates and your officers, directors, employees and agents from and against any third party damages liabilities, costs and expenses arising out of any claim that the Product, Service or Equipment as delivered or in use, infringes a valid patent or copyright in the jurisdiction, provided that (a) you promptly provided ANDE with written notice of the claim and with reasonable cooperation, information and assistance in connection with its defense, settlement, compromise or resolution; and (b) ANDE was provided with the sole control and authority with respect to the defense, settlement, compromise or resolution of the claim. If any Product, Service, Equipment or Software becomes, or in ANDE's opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, ANDE may, at its option (1) procure for you the right to continue using the Product, Service, Equipment or Software; (2) replace or modify the Product, Service, Equipment or Software so that it becomes non-infringing without substantially compromising its functionality; or (3) require you to return to ANDE the allegedly infringing Product, Service, Equipment or Software for a credit in an amount not to exceed the depreciated value of the Product, Service, Equipment or Software that you have paid. The depreciated value shall be calculated on a straight-line basis over a three (3) year period. Notwithstanding the foregoing, ANDE's obligations in respect of alleged infringement of Software (if any) is set out in ANDE's Software license, and if there is a conflict between the Software license and these Terms and Conditions, the Software license shall apply. ANDE will have no liability or obligation based on (1) your use of the Product, Service, Equipment or Software in an application or on a platform or with devices for which the Product Service, Software or Equipment was not designed or reasonably contemplated; (2) modifications, alterations, combinations or enhancements of the Product, Service, Equipment or Software not supplied by ANDE; or (3) any patent, copyright or trade secret in which you have a financial, ownership or other interest. The indemnifications stated in this Section 2.2 constitute the entire liability of ANDE with respect to infringement of intellectual property rights by the Product Service, Equipment or Software or any parts thereof. ANDE shall not be liable for any regular, consequential, special or exemplary damages caused by you.
2.3 Indemnification Procedures. The indemnified party will (1) notify the other party of any Claim; (2) relinquish control of the defense and settlement; and (3) assist the indemnifying party as reasonably requested. The indemnifying party may settle any Claim without the indemnified party’s consent if the settlement does not affect the rights of the indemnified party and includes the full and unconditional release of the indemnified party. The indemnified party may participate in the defense at its expense. Neither Party shall be responsible for any settlement of a suit or proceeding made without its prior written consent.
3. Mutual Grants of Immunity. If applicable and to the extent not prohibited by applicable law, each Party will be entitled to not less than the same benefits and protections afforded by any law, regulation or other applicable rule which extends protections to the other Party in any form, including but not limited to governmental or other immunity, indemnification, or other protection. Neither Party will object to or interfere with the assertion of such immunity by the other Party.
4. Mutual Termination for Breach. Either Party may terminate this Agreement upon the other Party's Uncured Material Breach, provided that (1) the non-breaching Party will first have sent written notice to the breaching Party describing the breach in reasonable detail and demanding that it be cured; (2) the breaching Party does not cure the breach within thirty (30) days following its receipt of such notice; and (3) following the expiration of the thirty (30) day cure period, the non-breaching Party sends a second written notice to the breaching Party indicating that the non-breaching Party has terminated the Agreement, provided however, that the cure period in (2) will extend for an additional thirty (30) days if either party uses good faith efforts to cure.
4.1 Your Obligations Upon Termination. In the event of Termination, you agree to pay for Products and/or Services delivered and outstanding invoices. Upon termination, you agree to immediately cease use of Products, Services, Equipment and Software, and to cooperate with ANDE in the removal of Equipment (f any) from your premises.
5. Intellectual Property
5.1 ANDE IP. All of the intellectual property rights in the Products, Services, Software and Equipment will remain with ANDE. All patents, trademarks, service marks, trade names, logos, know-how, techniques, designs, devices, improvements, derivative works, data, specifications, software, algorithms, discoveries or inventions, whether or not reduced to practice), shall remain the property of ANDE and/or its licensors. Any user license that may be granted to you under the Agreement (including a license to use Software) shall be non-transferable, non-sublicensable and non-exclusive and shall only be used for your own internal business purposes of operating the Products, Software or Equipment to which it pertains. Any such license shall terminate automatically on the termination or expiry of the Agreement.
5.2 Restrictions on Use and Prohibited Uses. You recognize and agree that the Products, Equipment and Services provided hereunder are subject to use restrictions that are a condition of purchase. You agree to comply with all such restrictions as may be set forth in this Agreement, in ANDE's catalogue or website, on its Products, or Equipment, or in documentation or on labels provided, or as otherwise provided in writing to you, as well as with any applicable regulatory requirements. Products, Software or Equipment may not (1) be used in a manufacturing process or in a manufactured product; (2) be re-sold or used in a service business by you or your Affiliates (if any); (3) be used in medical, clinical or diagnostic applications or in vivo. You agree not to make any disposition by way of transshipment, re-export, diversion or otherwise, of U.S. origin goods and technical data (including computer software), or the direct product thereof, supplied by ANDE hereunder. You also agree not to export the ANDE Products or Equipment or any information or documents provided hereunder outside of the country of delivery without the requisite export license from the relevant body of the United Nations or other similar organization, the United States Government, the European Union, the country of origin or the original country of export. If such export is contemplated, you agree to furnish ANDE with copies of all documents relating to such export in advance.
6. Your Use Obligations.
6.2Operational Data Rights to ANDE. You agree to grant ANDE access to system logs and files to perform system support, maintenance and improvements. ANDE agrees not to publish any information that may be attributable to you, your employees, or the citizens you serve (if applicable).
8. Sustainability Program. Upon request by you, ANDE can provide guidelines that outline the appropriate procedures for the proper disposal of used ANDE chips.
9. General Provisions
9.1 Taxes and Duties. You shall be responsible for paying all applicable taxes, duties, fees and other government charges relating to the Products and Services, except taxes based on ANDE's income.
9.2 Late Payments. Overdue payments shall be subject to finance charges of the lower of 18% per annum or the maximum interest rate allowed by law.
9.3 Deliveries, Title Transfer, Risk of Loss. Products shall be shipped ExWorks (Incoterms 2000) ANDE designated facility. ANDE will select the method of shipment and carrier to be used and you shall be responsible for paying all shipping costs. Shipping costs set forth on Exhibit A of the International Equipment and Services Agreement, or in the case of on-line orders, are estimates only, and you will be charged actual shipping costs. Partial shipments may be made.
Title and risk of loss for Products shall pass to you upon delivery. You must notify the carrier and ANDE immediately if any Products or Equipment are received in a damaged condition. ANDE will use commercially reasonable efforts to avoid delay in delivery of Products; however, if delivery of any Product or Equipment requires an import license or other authorization before shipment, ANDE shall not be responsible for any delay in delivery due to delay in, or refusal of, such license or authorization.
ANDE grants only a license, and does not pass title for any Software provided under this Agreement.
9.4 Force Majeure. Neither party will be liable to the other, or considered in breach, for delays or defaults in its performance (except for its payment obligations) due to causes beyond its reasonable control, including: acts of God or government; war, terrorism, fire or explosion; flood; extreme weather; epidemic; riots; embargoes; viruses; technology attacks; labor disturbances; failure or unavailability of the Internet, telecommunications, transportation, utilities or suppliers.
9.5 Independent Contractors; No Third Party Beneficiaries. The parties are independent contractors and this Agreement does not create an agency, joint venture or partnership. This Agreement benefits you and ANDE only. Your customers are not third party beneficiaries of this Agreement.
9.6 Conflict; Amendment; Severability. If any term, provision or section is held void, illegal or unenforceable, the validity or enforceability of the remainder will not be affected. No course of dealing or failure to exercise any right or obligation can operate as an amendment or waiver. This Agreement may be modified or amended or a provision waived, only in a writing signed by both you and ANDE.
9.7 Assignment. This Agreement will be binding on the permitted successors and assigns. Either party may transfer or assign this Agreement to an Affiliate or to an acquirer of all or part of its business or assets without consent.
9.8 Applicable Law and Remedies. This Agreement is governed by the law of the State of Massachusetts without regard to choice of law principles, and you agree to submit to the non-exclusive jurisdiction of the courts of the State of Massachusetts. THE PARTIES WAIVE AND FOREGO ANY RIGHT TO A TRIAL BY JURY. If there is a dispute, arising out of this Agreement, we agree that it shall be resolved by binding arbitration administered by the International Center for Dispute Resolution (“ICDR”) in accordance with its International Arbitration Rules then in effect. The arbitration shall be conducted by a single arbitrator, who shall be mutually selected, or if we cannot agree, shall be appointed by the ICDR. The arbitration will be conducted in English and shall take place in the state of Colorado. Each party will bear its own expenses (including attorneys’ fees), however, the arbitrators’ fees and the ICDR costs shall be mutually shared. The decision of the arbitrator shall be binding, and judgement may be entered by any court of competent jurisdiction.
Notwithstanding the foregoing, each party will have the right to commence an action, including for a restraining order to enforce the intellectual property and restrictions on use provisions of Section 5. All rights and remedies are in addition to any other rights or remedies at law or in equity, unless designated as an exclusive remedy in this Agreement.
9.9 Compliance with Laws. Each party has or will timely obtain all consents, licenses, permits and certificates required to perform under this Agreement. ANDE's performance is subject to existing laws, and ANDE may cease or modify the Products or Services or these Terms and Conditions as reasonably required to comply with changes in law.
9.10 Notices; Entire Agreement; Survival; Signature. All notices, including any notice of infringement, must be in writing and delivered to the signatory party at the address on the Agreement. Notices are effective on receipt when sent by certified or registered U.S. or international mail, charges prepaid, return receipt requested or when delivered by hand, or by overnight courier with confirmed receipt. This Agreement constitutes the entire agreement and supersedes any prior written or oral agreements or understandings related to its subject matter. Sections 1,2,3,4,5,6 and 9 and any and all remedies for breach will survive termination or expiration of this Agreement. This Agreement may be executed in counterparts, by facsimile or electronically, and is not enforceable unless executed by both parties.
10.1 "Affiliate." An affiliate of, or person affiliated with, a specified person means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common ownership with the person specified.
10.2 "Agreement." Agreement means either contract or invoice for the sale of Products and/or Services between ANDE and you, or the Order signed by you and accepted by ANDE in writing, including all exhibits, and any software use or licenses agreements accepted by the act of unwrapping, installation, operation or use of Equipment or Products provided under this Agreement, together with these Terms and Conditions. Unless provided to the contrary herein, in the event of any conflict, the Terms and Conditions shall take precedence over the other documents included in the Agreement.
10.3 "Chip." Chip means the Consumable that contains the reagents for ANDE Rapid DNA™ analysis.
10.4 "Consumable." Consumable means all items (other than Equipment, Instruments or Software), including Chips and swabs for ANDE Rapid DNA™ analysis.
10.5 "Equipment." Equipment means items (other than Instruments), if any that are of a capital nature, including without limitation, computers, and non-expendable accessories or spare parts, as more particularly set forth on ANDE's website, that are provided by ANDE pursuant to the Agreement.
10.6 "Instrument." Instrument means the ANDE Rapid DNA™ instrument.
10.7 "Order" Order means an order (via the ANDE website or otherwise) that is accepted by ANDE for purchase of Products or Services.
10.8 "Product" Productmeans all items (other than Equipment or Software), including Instruments, Chips and Consumables, agreed to be supplied by ANDE under a contract, Invoice or Order, as provided herein, or on ANDE's website, as amended from time to time.
10.9 "Services" means all services for ANDE Rapid DNA™ analysis provided under this Agreement, including any Upgraded Support set forth in Exhibit A of the Agreement.
10.10 "Software" means any firmware, software or data compilations provided in executable format that is identified in the Agreement or provided to Customer in connection with purchase, installation or operation of Instruments or Products.
10.11 "System" System means an Instrument, Chip, and Software for Rapid DNA™ analysis provided hereunder.