1. Definitions. As used in these Terms and Conditions (“Agreement”), (a) “Seller” means ChromaDex®, Inc., its affiliates and their respective successors and assigns, (b) “Buyer” means the party executing this Agreement to purchase the Products or Services and/or the party accepting delivery of the Products or Services under this Agreement, (c) “Products” mean, but are not limited to, the standards, kits reference materials and other equipment and goods provided by Seller under this Agreement, and (d) “Services” means all lab work and other services provided by Seller in connection with the sale, use or installation of the Products. TOP
18. Governing Law. This Agreement and all claims and causes of action shall be governed by and subject to the internal laws (exclusive of the conflicts of law provisions) and decisions of the courts of the State of California. The sole and exclusive venue for all claims and causes of action between the parties shall be the state or federal court located in Orange County, California. TOP
2. Acceptance, Merger and Integration. Buyer will be deemed to have accepted this Agreement when Seller returns to Buyer an executed copy of this Agreement, by confirming this Agreement by its purchase agreement or confirmation, or by acceptance of delivery of the Products or Services under this Agreement. Seller will be deemed to have accepted this Agreement when Buyer returns to Seller an executed copy of this Agreement, or, at Seller’s option, when Seller begins substantial performance under this Agreement. Seller reserves the right to accept or reject any purchase agreement or confirmation. Buyer has no right to cancel or defer shipment, delivery or installation unless agreed to in writing by Seller. Notwithstanding the manner in which Buyer accepts this Agreement, Buyer’s acceptance of this Agreement is limited exclusively to the acceptance of all of Seller’s terms and conditions set forth in this Agreement. Buyer may acknowledge this Agreement by its purchase agreement, confirmation or acknowledgment form, but any and all terms and conditions contained in such purchase agreement, confirmation or acknowledgment form or other communications with respect to the transaction contemplated by this Agreement, or subsequent to the date hereof, shall be without any force and effect. This Agreement, and all exhibits, riders or limited warranties attached hereto, is intended to be the exclusive and final statement of the terms and understandings relative to the subject matter hereof, merging herein and superseding all negotiations and prior written or oral agreements between the parties as to the subject matter of the purchase of the Products or Services. TOP
3. Payment. Payment shall be net thirty (30) days from the date of shipment; provided, however, Seller reserves the right to modify such credit terms in its sole and absolute discretion. Failure to make prompt and full payment hereunder constitutes a material breach of this Agreement and affords Seller the right to suspend its performance without liability to Buyer and cancel this Agreement and any purchase orders. Buyer has no right of setoff. If full payment is not made when due, Seller shall be entitled to interest on any amount unpaid at the rate of 1.5% per month until Seller receives payment in full. In addition, if any amount payable to Seller is not received by Seller within 10 days of the due date, a late payment processing charge equal to 6% of such delinquent amount will be paid by Buyer to Seller to defray the expense incident to the processing, administration and collection of delinquent payments. Buyer agrees to reimburse Seller for any and all expenses Seller may incur, including reasonable attorneys' fees, in taking any action contemplated by this Paragraph. TOP
4. Taxes and Import Duties. The price of the Products or Services specified does not include federal taxes, state or local sales taxes, use taxes, occupational taxes or import duties. Unless prohibited by law, Buyer is responsible for and shall pay all applicable sales, use, occupational, excise, value added or other similar taxes or import duties applicable to the manufacture, sale, price, delivery or use of the Products or Services provided by Seller, or in lieu thereof, Buyer shall provide Seller with a tax-exemption certificate acceptable to and considered valid by the applicable taxing authorities. TOP
5. Delivery and Risk of Loss. All sales are FOB\FCA Seller’s U.S. dock. Risk of loss, destruction of or damage to the Products shall be Seller’s until delivery of the Products to a common carrier at Seller’s U.S. dock. Thereafter, title shall pass to Buyer and Buyer shall be fully responsible, and shall hold Seller harmless, for and assume all risk of loss, destruction of or damage to the Products. Loss or damage to the Products after risk of loss has passed to Buyer will not release or excuse Buyer from its obligations under this Agreement to Seller, including the obligation to make full payment of the purchase price. Seller reserves the right to pack or ship orders in the most economical manner. However, where Buyer requests special packaging or shipping, any additional cost will be billed to and be the responsibility of Buyer. TOP
6. Delivery Delays. Seller shall use reasonable efforts to make prompt deliveries in a commercially reasonable manner. Delivery dates and estimates are, however, not guaranteed. Seller disclaims any liability or responsibility, and Buyer shall hold Seller harmless, for the late or non-delivery of Products or Services. Buyer has no right to delay or defer delivery or acceptance. TOP
7. Rejection and Revocation of Acceptance. Any rejection or revocation of acceptance of Products or Services by Buyer must be made within thirty (30) days of delivery of such Products and Services and any attempted rejection or revocation of acceptance of such Products and Services made thereafter shall be null and void unless agreed to in writing by Seller. Failure to make a claim within such period shall be conclusive evidence that the Products and Services were satisfactory in all respects and supplied in accordance with ordered specifications. TOP
8. LIMITED WARRANTY AND DISCLAIMER OF ALL OTHER WARRANTIES. (a) SELLER WARRANTS FOR A PERIOD OF 30 DAYS COMMENCING ON THE DATE OF DELIVERY THAT THE PRODUCTS AND SERVICES (i) MEET OR EXCEED THE WRITTEN SPECIFICATIONS SET FORTH ON SELLER’S ORDER ACKNOWLEDGEMENT, AND (ii) ARE FREE OF MATERIAL DEFECTS IN DESIGN OR WORKMANSHIP. BUYER’S EXCLUSIVE REMEDY IN CONNECTION WITH THESE EXPRESS WARRANTIES IS THE REPAIR OR REPLACEMENT OF THE PRODUCTS OR SERVICES OR, AT SELLER’S OPTION, A REFUND OF THE PURCHASE PRICE, IF ANY, ACTUALLY PAID BY SELLER FOR THE NONCONFORMING PRODUCTS OR SERVICES. IF BUYER OBTAINS A REFUND OF THE PURCHASE PRICE, BUYER SHALL FIRST SHIP THE PRODUCTS SUBJECT TO THE REFUND TO SELLER AND TRANSFER TITLE TO SAID PRODUCTS TO SELLER AS SOON AS PRACTICABLE. TOP
(b) EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 8, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES IN THIS AGREEMENT OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER DISCLAIMS ALL WARRANTIES, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
(C) ANALYSES ARE CARRIED OUT IN THE BEST CONDITIONS AVAILABLE TO SELLER IN ACCORDANCE WITH TECHNOLOGY DEVELOPED BY SELLER. INTERPRETATIONS ARE BASED UPON ANALYSIS RESULTS AND ON INFORMATION PROVIDED BY BUYER. INTERPRETATIONS, ASSESSMENTS AND CONCLUSIONS ARE PREPARED WITH A REASONABLE DEGREE OF CARE BUT BUYER ACKNOWLEDGES THAT IN ANY EVENT THEY CAN ONLY BE CONSIDERED AS BEING THE SIGNATORY’S OPINION. SELLER CANNOT GUARANTEE THAT THESE WILL ALWAYS BE CORRECT OR ABSOLUTE, PARTICULARLY IN VIEW OF THE CONSTANT EVOLUTION AND RE-EVALUATION OF SCIENTIFIC KNOWLEDGE AND REGULATIONS. IN ALL CASES BUYER MUST VERIFY THE VALIDITY OF ANY INTERPRETATIONS, ASSESSMENTS AND CONCLUSIONS SUPPLIED BY SELLER IF IT WISES TO RELY ON THE SAME IN RESPECT OF MATTER OF IMPORTANCE AND SHALL DO SO AT ITS OWN RISK.
(D) ANALYSIS RESULTS ARE PREPARED AND SUPPLIED EXCLUSIVELY FOR THE USE OF BUYER AND MAY NOT BE DIVULGED TO A THIRD PARTY WITHOUT THE PRIOR WRITTEN AGREEMENT OF SELLER, WHICH CONSENT MAY BE WITHHELD BY SELLER IN ITS SOLE AND ABSOLUTE DISCRETION. IF SUCH WRITTEN CONSENT IS GIVEN BY SELLER, BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FOR ANY DAMAGES ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THE DIVULGENCE OF SUCH RESULTS TO A THIRD PARTY.
(E) EACH ANALYTICAL REPORT RELATES EXCLUSIVELY TO THE PRODUCT RECEIVED BY SELLER AS SPECIFIED IN THE WRITTEN ACCEPTANCE OF ORDER BY SELLER. SELLER ACCEPTS NO RESPONSIBILITY, AND BUYER SHALL HOLD SELLER HARMLESS, FOR THE WAY THE SAMPLE WAS COLLECTED, STORED OR DELIVERED TO SELLER UNLESS SELLER HAS SPECIFICALLY AGREED IN WRITING TO UNDERTAKE SUCH TASKS ITSELF.
(F) SELLER ACCEPTS NO RESPONSIBILITY, AND BUYER SHALL HOLD SELLER HARMLESS, FOR ANY LOSS OR DAMAGE THAT MAY OCCUR TO ANY SAMPLE IN TRANSIT. BUYER WILL AT ALL TIMES BE LIABLE FOR THE SECURITY, PACKAGING, AND INSURANCE OF THE SAMPLE FROM ITS DISPATCH UNTIL IT IS DELIVERED TO THE OFFICE OR LABORATORIES OF SELLER. SELLER WILL USE COMMERCIALLY REASONABLE CARE IN HANDING AND STORING SAMPLES, BUT SELLER SHALL NOT BE HELD RESPONSIBLE, AND BUYER SHALL HOLD SELLER HARMLESS, FOR ANY LOSS OR DESTRUCTION OF SAMPLES EVEN AFTER THEIR RECEIPT AT ITS LABORATORIES.
(G) BUYER WARRANTS AND REPRESENTS TO SELLER THAT ALL SAMPLES TO BE SENT TO SELLER FOR ANALYSIS SHALL BE IN A SAFE AND STABLE CONDITION AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FOR ANY AND ALL DAMAGES WHICH SELLER MAY SUFFER AS A RESULTS OF ANY SAMPLE NOT BEING IN A SAFE OR STABLE CONDITION, NOTWITHSTANDING THAT BUYER MAY HAVE GIVEN AN INDICATION ON THE SAMPLE OR ANY ORDER FORM OF ANY PERCEIVED PROBLEM WITH THE SAMPLE. TOP
9. Sample Storage. Samples will be destroyed by Seller 30 days after the analysis has been completed by Seller. If Buyer desires a sample to be retained by Seller, Buyer must so request in writing, in which case the terms on which the sample will be retained must be agreed in writing between Seller and Buyer. In the absence of such mutual agreement, Seller shall have no obligation to retain the sample. TOP
10. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES WAIVE AND RELINQUISH ANY CLAIMS, DEMANDS, AND CAUSES OF ACTION OR RECOVERIES FOR PUNITIVE DAMAGES, EXEMPLARY DAMAGES, OR STATUTORY DAMAGES. IN NO EVENT WILL SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SALE OF THE PRODUCTS OR PROVISION OF SERVICES, INCLUDING ANY LOST REVENUES OR PROFITS, CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, INCLUDING ANY TORT OR STATUTORY CAUSES OF ACTION. NOTWITHSTANDING THE TERMS OF ANY LIMITED WARRANTY, AND/OR IN THE EVENT ANY LIMITED WARRANTY PROVIDED TO BUYER FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL SELLER’S ENTIRE LIABILITY TO BUYER (IN TORT, CONTRACT, FOR INTELLECTUAL PROPERTY INFRINGEMENT, OR OTHERWISE) EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR THE PRODUCTS AND/OR SERVICES SUBJECT TO THE CONTRACT OR AGREEMENT IN DISPUTE, OR ANY DEFECTIVE OR NONCONFORMING PORTION THEREOF, WHICHEVER IS THE LESSER AMOUNT. BOTH PARTIES UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY ALLOCATES RISK OF NONCONFORMING GOODS BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OTHER APPLICABLE LAW. THE PRICE OF THE PRODUCTS AND SERVICES REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY, INCLUDING THE EXCLUSION OF SPECIAL, INDIRECT, CONSEQUENTIAL AND INCIDENTAL DAMAGES, IN THIS AGREEMENT. TOP
11. Default. The failure of Buyer to perform any obligation hereunder, the failure to materially perform any other agreements between Buyer and Seller, or Buyer’s bankruptcy, insolvency, fraud or inability to pay its debts as they mature, shall constitute a default under this Agreement and shall, in addition to any other remedies at law or in equity, afford Seller, among other remedies, all of the remedies of a secured party under the applicable Uniform Commercial Code. In the event of such default, Seller may, in addition to pursuing any of the remedies provided by law, equity or as set forth in this Agreement, refuse to provide warranty, repair and/or maintenance Service and/or deliver Products under this or any Service or maintenance agreement relating to the Products, and may also cancel this Agreement and any pending orders without liability to Buyer. In the event of default, Seller may also, without limiting its other remedies, terminate this Agreement and apply any and all payments received hereunder or otherwise from Buyer to any damages that Seller may have as a result of the breach of this Agreement or otherwise. To the fullest extent permitted by law, all of Seller’s rights and remedies under this Agreement shall be cumulative and not exclusive. TOP
12. Reservation of Rights: The sale of Products and Services covered by this Agreement shall not confer upon Buyer any license or right under any patents, trade secrets or other proprietary information owned or controlled by Seller, or the right to otherwise utilize such proprietary information, it being specifically understood and agreed that all such rights are reserved to Seller. TOP
13. Waiver and Severability. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. If any term, covenant, warranty, remedy or condition of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unenforceable, the remainder of this Agreement or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term, covenant or provision of this Agreement shall be deemed valid and enforced to the fullest extent permitted by law. TOP
14. Force Majeure. Seller shall have no liability or obligation to Buyer of any kind, including, but not limited to, any obligation to deliver Products or provide Services, arising from any delay or failure to perform all or any part of this Agreement as a result of causes, conduct or occurrences beyond Seller’s reasonable control, including, but not limited to, commercial impracticability, fire, flood, earthquake, lightning, storm, accidents, act of war, terrorism, civil disorder or disobedience, act of public enemies, problems associated with transportation (including car or truck shortages), shortages of energy or raw materials, acts or failure to act of any state, federal or foreign governmental or regulatory authorities, labor disputes, strikes, or failure of suppliers to make timely deliveries of materials, goods or services to Seller. TOP
15. Indemnification. To the fullest extent permitted by law, Buyer shall defend, indemnify and hold Seller harmless from any and all claims, demands, subrogation claims by third parties, including Buyer’s insurers, causes of action, controversy, liabilities, fines, regulatory actions, seizures of Product, losses, costs, expenses (including, but not limited to attorneys’ fees, expert witness expenses and litigation expenses) (hereinafter “Claim”), arising from or in connection with any Claim asserted against Seller for any damage, environmental liability, patent or intellectual property infringement caused by Buyer’s use, modification or alteration of the Products, injury, death, loss, property damage, delay or failure in delivery of Seller’s Products or any other Claim, whether in tort, contract, breach of warranty or otherwise, relating to this Agreement, the business relationship between the parties, the Products or Services provided hereunder, or Buyer’s breach of this Agreement. Notwithstanding the foregoing, Buyer has no indemnity obligation to Seller to the extent that any Claims result from the gross negligence of Seller. Buyer, for itself and its insurers, expressly waives any and all limitations or liability caps, if any, on Buyer’s contribution liability to Seller, and any and all statutory or common law lien rights or Claims against Seller arising from any applicable workers compensation or disability acts, which Buyer might or could assert against Seller or Seller’s insurers in the event of the personal injury or death of Buyer’s employees, representatives or servants. Without limiting the foregoing, Buyer, for itself and its insurers, also waives any liens, Claims or other rights it may have as a result of being subrogated to any rights of its employees, representatives or servants. TOP
16. Relationship. The relationship between Seller and Buyer shall be that of independent contractors and neither party, its agents and employees, shall under no circumstances be deemed the employees, distributors, franchisees, agents or representatives of the other party. TOP
17. Assignment and Modification. The rights and obligations of Buyer under this Agreement shall not be assignable with the prior written consent of Seller. This Agreement shall not be modified, altered or amended in any respect except by a writing signed by the parties. Any variation, modification or addition to the terms set forth in this Agreement shall be considered a material modification and shall not be considered part of this Agreement. TOP